On May 24, 2016, Justice Maria Rosa issued a contempt order against New York’s State’s Parole Board. This was the result of a long battle between the Board and John MacKenzie, a prisoner who has consistently been denied release despite his impeccable incarceration record. MacKenzie committed a high-profile crime in the late 1970’s; significant opposition surrounds his release. So far, none of the many positive things MacKenzie has done seem to outweigh his original 40- year-old crime. Convicted of a violent act, but otherwise remarkably eligible to return to society, MacKenzie is trapped between competing philosophies of punishment and the appropriate exercise of discretionary parole release.
Parole Boards in the United States enjoy a generous amount of discretion over release from prison. This discretion is enhanced by the reality that in general, prisoners have no right to due process in parole release decisions. Under the Constitution, some level of due process must exist in any setting where the deprivation of liberty is at stake. Yet, as the U.S. Supreme Court held in 1979 in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, “there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”1 With no right to conditional release, it follows that prisoners like MacKenzie have no liberty interest in leaving prison before their sentence expires. One caveat to this, however, is that once a state creates a parole system, the Board is obligated to follow state laws governing the backend stage of prison release.
John MacKenzie is serving a 25-year-to-life sentence in New York for the 1975 shooting death of police officer Matthew Giglio after a burglary. It was MacKenzie’s first and only violent crime. Entering prison in 1981, he has been eligible for release since 2000, but has been denied parole eight times. MacKenzie has reportedly been a model prisoner for 35 years, dedicated to his own rehabilitation and consistently expressing remorse for his behavior. At 69, he suffers from medical conditions and has aged. Many argue that “cop killers” should never be granted release. Giglio’s adult children and the Nassau Police Benevolent Association have consistently advocated against his parole since he reached initial eligibility 16 years ago.
MacKenzie unsuccessfully contested some of the Board’s past denials, invariably encountering the arguments in Greenholtz. In 2012, the Appellate Division of the state’s Supreme Court upheld the dismissal of his petition for appeal in MacKenzie v. Evans, reasoning that: “It is well settled [that] the parole release decisions are discretionary and will not be disturbed as long as the Board complied with the statutory requirements of Executive Law § 259-i [the statute governing parole release].”2
MacKenzie’s appeal from a December 15, 2014 denial of parole, however, produced a very different outcome due to a change in 2011 in New York’s Executive Law § 259-c(4) [the statute describing the functions and powers of the Board]. According to State Supreme Court Justice Rosa, this amendment to the law emphasizes risk and needs principles and thus “requires the parole board to focus on an applicant’s rehabilitation and future rather than giving undue weight to the crime of conviction and to the inmate’s preincarcerative behavior (Italicized by authors).”3 In accordance with this revision, Rosa ruled that the Board is required to weigh a number of statutory factors in considering parole release, including:
- The institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and inmates;
- Prisoner release plans including community resources, employment, education and training and support services available to the inmate; and,
- A prisoner’s prior criminal record, including the nature and pattern of offenses and adjustment to confinement.4
In her decision, Justice Rosa noted that the Board did not adequately weigh these factors, nor did it inform the inmate in writing of the reasons for denial of parole in sufficient detail. MacKenzie received only a conclusory statement that his release “would not be compatible with the welfare of society and would depreciate the seriousness of his crimes of conviction as to undermine respect for the law.” Based on these deficiencies, the court ordered a de novo hearing on parole release.5
At its December 2015 de novo hearing the Board reached much the same result, hardly changing its tone or message. The 2015 decision reads:
“Parole is denied. Hold 24 months. Next appearance 6/2016. The panel commends your personal growth and productive use of time. However, discretionary release shall not be granted merely as a reward for good conduct or program completion while incarcerated.
After a careful review of your record and personal interview, parole is denied. Your release would be incompatible with the welfare of society and would so depreciate the serious nature of the offense as to undermine respect for the law… Due consideration has been given to your COMPAS Risk Assessment, rehabilitative efforts, case plan, parole packet risk, letters of support and sentencing minutes.6
Upon receipt of this decision, MacKenzie filed a contempt application against the Board. In court, the only witness was MacKenzie himself. Though the Board filed a motion to dismiss, no Board representative appeared to contest the case or to present evidence.7
On May 24, 2016, Justice Rosa ruled that the Board did not reach its decision based on a substantive consideration of the statutory factors set forth in the law. The court then held the New York State Board of Parole in contempt, ordering a fine in the sum of “$500.00 per day starting June 7, 2016 for each day until an actual de novo parole hearing is held and a decision is issued in accordance with Executive Law § 259-i(2).” The new hearing may not consist of any of the members from either the 2014 or 2015 parole panels that denied parole.8
This case reflects a deep tension in the policy and practice of paroling authorities, especially in indeterminate sentencing jurisdictions, directed mainly at offenders convicted of violent crimes or those otherwise serving lengthy terms of incarceration. Retributive values continue to exert an undue impact on boards’ decisions to deny parole repeatedly, often long after the minimum sentence imposed by a judge has been satisfied. Under these circumstances, parole boards often refuse to grant release rooted in their conviction that a longer sentence is necessary to ensure that the seriousness of the crime is not depreciated. In their view, the prisoner has not served sufficient time to satisfy punishment purposes.
In our estimation, the normative framework described above requires fundamental rethinking. Doing so begins with a recognition of the different justice system goals operative as an offender moves from the sentencing stage to the parole stage. Paroling authorities within this reconfiguration are not responsible for determining whether an appropriate dosage of punishment has been served when deciding release. This is properly viewed as a judicial function exercised at the point an indeterminate sentence is handed down.9 When left to the unchecked discretion of parole boards, the practical outcome otherwise is the creation of a nearly insurmountable barrier for release based on the seriousness of the crime which parole eligible offenders can never overcome.
In shifting to parole, an offender’s first date of release eligibility should be taken to reflect a prison term that is not disproportionately lenient given the period of incarceration already served. Stated otherwise, it expresses judicial affirmation that the duration of confinement already served is adequate to satisfy the retributive goals of the sentenced imposed. Upon arrival of the eligibility date, the focus of the parole board should shift to addressing whether keeping the offender in prison beyond initial eligibility for release is necessary pursuant to the goal of public protection. We (and others) propose that the “[denial] of release should [only] be based on credible assessments of risk of serious criminal conduct and readiness for reentry.”10
The MacKenzie ruling carries significant implications for the future of discretionary parole release. Though the decision is applicable to New York, and even then, only to Dutchess County, it suggests that within and across state boundaries, a recalibration is necessary affecting the intersection of sentencing and parole decision-making. Those jurisdictions that seek to give prisoners a meaningful opportunity for parole release must create clear laws that demarcate when retributive goals are satisfied and utilitarian goals become the primary focus. This represents a marked departure from current practice in calling for a statutory rebalancing of the court’s authority to define the punitive portion of a prison sentence and the parole board’s responsibility to make fair and credible determinations of both offenders’ risk and readiness to return to the community. If this normative framework had been in place in New York, we envision the parole board rather than Judge Rosa closing with the question: “if parole isn’t granted to this petitioner, when and under what circumstances would it be granted?”
1Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979).
2MacKenzie v. Evans, 945 N.Y.S.2d 471, 472 (N.Y. App. Div. 2012).
3MacKenzie v. Stanford, Index No. 2789/15 at 1*-2*(N.Y. Sup. Ct. 2016).
4See N.Y. Exec. Law § 259-i(2)(c) (2016).
5MacKenzie, Index No. 2789/15 at 2*.
6Id. at 2*-3*.
7Id. at 3*
8Id. at 4*-5*.
9Julian V. Roberts, Listening to the Crime Victim: Evaluating Victim Input at Sentencing and Parole, Crime and Justice Vol 38, pp. 347-412 (2009).
10See Edward E. Rhine, Joan Petersilia, & Kevin R. Reitz, Improving Parole Release in America, 28 (2) Federal Sentencing Reporter 96-104 (2015). The arguments pertaining to the proper allocation of retributive and utilitarian goals pertaining to sentencing and parole draw from this article, and a chapter The Future of Parole Release: A Ten-Point Plan, in Reinventing American Criminal Justice Systems (Michael Tonry, ed., forthcoming 2017); draft available at http://papers.ssrn.com/so13/papers.cfm?abstract_id=2672033. See also Peggy Burke, The Future of Sentencing: Parole Discretion and Risk Reduction. 28 (2) Federal Sentencing Reporter 88-91 (2015).