Parole release decisions for individuals serving life sentences are difficult for parole boards to make, especially if the original crime was notorious. In New York, for example, the decision to release Herman Bell has resulted in intense political polarization and is the latest in a long series of issues facing that state’s parole board. Board members across the country struggle to balance their impartiality and duty to consider many factors surrounding release with the potentially crushing weight of public opinion. For individuals granted life with parole, the opportunity to receive parole consideration should not be meaningless. The distinction between this sentence and a life without parole sentence should be respected. However, until Boards make the necessary changes to depoliticize the parole process, elderly incarcerated individuals who have already paid for their crimes with decades of their lives will continue to languish without release. This will occur even in the face of clear evidence of rehabilitation or diminished risk.
In mid-2016, we wrote an article about John Mackenzie, a man serving a life with the possibility of parole sentence in New York state. Mackenzie was 70 and had been incarcerated for decades after shooting a police officer in the aftermath of a burglary. As with anyone labelled a “cop killer,” Mackenzie’s crime was viewed by some as heinous and his potential release provoked political controversy. Yet, Mackenzie was sentenced to life with parole, so in theory he could earn eventual release. To that end, he became a model prisoner who found ways to improve himself and give back to the community outside.
After many consecutive parole denials due solely to the seriousness of his original crime, Mackenzie sought judicial review.1 In 2014, Judge Maria Rosa ordered the Board to grant him a more thorough release consideration using the many factors listed in the 2011 version of New York’s parole statute. Under that statute, the Board must examine risks and needs assessments, the institutional record, release plans, and educational performance, in addition to the individual’s criminal history and crime of conviction.2 In 2016, when the Board returned another parole denial that did not appear to take such factors into consideration, Judge Rosa held the Board in civil contempt. In August 2016, while the contempt case was still pending, Mackenzie was denied parole for the tenth time in sixteen years and committed suicide. As Victoria Law wrote in the Village Voice:
“[F]our days after Mackenzie’s death, his attorney Kathy Manley received a decision from Judge Rosa reaffirming the contempt order. Had he not ended his own life, she told the Voice, they would have gone on to fight the attorney general’s attempt to appeal the contempt order. Manley was hopeful that the appeal court would uphold the contempt order, forcing the Board to hold a proper hearing in which, given Mackenzie’s spotless prison record, he would have been released. “I was optimistic,” she said, “but he couldn’t stand it anymore.”
Mackenzie’s case was not the only one that resulted in a finding of contempt. Michael Cassidy was convicted in 1985 of murdering his former girlfriend in an episode of alcohol-fueled violence. When he sought judicial appeal, the lower court found (as in Mackenzie) that the Board’s decision-making process did not comply with current law. The court ordered a new hearing before a different parole panel because it concluded that the Board “appear[ed] to have accorded no weight to any factor apart from the seriousness of the petitioner’s offense.” After a de novo Board hearing with a new panel did not result in release, Cassidy moved to hold the Board in civil contempt and the motion was granted. The contempt ruling was overturned because an appellate court held that the Board’s parole denial was based on more than just the original crime; concerns about his alcohol abuse in the distant past and about institutional adjustment also played a role.3 Between Cassidy, Mackenzie, and several other cases that received media attention, the Board’s release process was in the spotlight.
In September 2017, the Board revised its regulations on release decision-making. The new regulations give further emphasis to the importance of the statutory factors related to release. Upon denial, they require the Board to give reasons in detail, adding that they must, “in factually individualized and non-conclusory terms, address how the applicable parole decision-making principles and factors listed in [the statute] were considered in the individual’s case.”4 In the summary of public commentary published along with the rule, the drafters note that:
“[a] recurring theme among comments is that the Board places too much emphasis on the nature of the crime without adequate consideration of other factors. Some suggested specificity as to how the factors are weighed, a requirement to “substantially” consider the factors, or the creation of presumptions in favor of release. […] Many comments suggest that regulations require the Board to state in writing what steps an inmate should take to improve their chances of parole in the future.”
In March 2018, equipped with this new set of administrative regulations, the Board considered the high-profile case of Herman Bell, a Black Liberation Army member and former Black Panther convicted of killing two police officers and imprisoned since 1973. At age 70, Bell was granted parole on his seventh attempt. According to the New York Times, the Board considered “several factors, including Mr. Bell’s age, scant disciplinary history in prison and his success in compiling a “sturdy network of supporters,” including the Prisoner Reentry Institute at John Jay College.”
Herman Bell’s grant of release has since caused a political firestorm. The police union and other law enforcement agencies have come out strongly against the decision. The President of the Patrolmen’s Benevolent Association referred to Bell as an “animal” and called for a de facto life without parole sentence. He has also said that given the decision, “these commissioners need to be canned.” Governor Cuomo has expressed disagreement with the decision; Mayor de Blasio has denounced the decision and urged the Board to reverse course in strong terms. As The Intercept recently reported:
“Making no reference to Bell’s risk and needs assessments – the very considerations that should guide parole decisions for prisoners who’ve already served their time – de Blasio wrote, “Murdering a police officer in cold blood is a crime beyond the frontiers of rehabilitation or redemption.”5
A widow of one of the officers, Diane Piagentini has been particularly vocal. The Patrolmen’s Benevolent Association has sued on her behalf using the same judicial review mechanism utilized by Mackenzie and Cassidy, claiming that the Board violated procedure. As of this writing, the case is being considered by State Supreme Court Justice Richard Koweek in Albany, NY. The first hearing was scheduled on April 13, but a decision was not reached at that time. A temporary restraining order remains in place preventing Bell’s release.
This situation is fraught for the New York Parole Board, which is only somewhat structurally shielded from political consequences and may now pay a price for attempts to make parole release more risk-based and objective. Board members may only be removed by the Governor for cause and after an opportunity to be heard,6 so they are unlikely to face immediate reprisal. However, as one law review article notes, “Commissioners who deviate from a culture and status quo of denying parole to the majority of applicants risk losing their reappointments.”7 There is also seemingly no way to reconcile the political pressure surrounding controversial releases in cases like Herman Bell’s with the requirement to grant fair and thorough hearings in which a meaningful opportunity for release is truly considered for all eligible individuals.
Though it would be tempting to see this as a New York issue, it is emblematic of what parole boards throughout the United States face when making release determinations. For individuals sentenced to life with the possibility of parole, it is particularly important that the challenge be addressed. Many are eligible for parole only after 25 or 30 years in prison and have hope for a release that never materializes. According to The Sentencing Project, in some states, lifers make up 1/3 of the total prison population; and the life-sentenced prison population has increased almost fivefold since 1984. Another Sentencing Project study shows that there are 110,000 lifers who are eligible for parole in prison in the United States. For these individuals, even those who are elderly and low-risk, there is evidence that current policies and practices have led to longer prison sentences than would have been served in the past. Recommended solutions from that study include creating political distance between governors and boards to allow meaningful decision-making, improving the procedural integrity of hearings, and establishing a presumption of release “unless an individual is deemed to pose an unreasonable public safety risk.”
Political insulation of boards is consistent with the need for procedural fairness. Board members who have a clear list of factors to consider at release should not have to mentally include the likelihood of their career ending if they align their decisions to the statutory or policy-defined factors. If boards cannot be depoliticized, public opinion may operate in a tyrannical fashion and spur additional punishment for individuals who have already served the retributive portion of their sentence. “Institutional vulnerability and personal job insecurity push parole boards toward risk aversion in their decision-making,” and these officials often bend to the “immense public and political pressure” surrounding release.8 At a higher level, board decisions made under the threat of political reprisal are inconsistent with the rule of law itself, which requires that quasi-judicial decision-makers be impartial and independent.
Clear standards and/or a presumption of release also provide political protection because they create more objective and consistent decision-making, thus reducing the liability of individual board members. Releasing decisions are then the result of the application of public-safety oriented standards more so than individual preferences. While board members still ultimately make an individualized determination of the risks surrounding release, they can point to agreed-upon baseline rules that guided them. However, as is the case in New York, the standards themselves could come under public and political scrutiny.
A presumption of release (which was raised in public commentary but not instituted in New York) provides the further benefit of meeting the philosophical goals of indeterminate sentencing. As Rhine, Petersilia, and Reitz argue in their article “Improving Parole Release in America”:
“In a model system, after a judge has imposed an indeterminate prison sentence, the date of first release eligibility should be taken to reflect a prison term that is not disproportionately lenient on grounds of punishment. The Board should be bound by the judge’s determination that the minimum sentence is long enough to serve retributive values – and the parole board should have no power to deny release based on its belief that a longer sentence is necessary or better on retributive grounds. Rather than relitigate the sentencing judge’s decision concerning proportionate punishment, the board should ask whether a prison stay beyond the date of first release eligibility is necessary to serve the goal of public protection.”
The recent events engulfing the integrity and fairness of New York’s parole system represent illustrations of a larger problem cutting across a majority of states. Parole candidates must have meaningful opportunities for release. The goal of indeterminate sentencing was never to warehouse low-risk individuals who bear the hallmarks of rehabilitation or to punish solely considering retribution. While political rhetoric may hold that some offenders “never see the light of day,” this has never been the philosophical intention of providing discretionary release.
It is also important to consider the history of parole. Cases like Herman Bell’s are just the most recent to bring up age-old arguments about punishment and reform. Alexander Maconochie, one of the “fathers” of parole, wrote during the mid-1800s. His ideas, described by a later author, could just as well be from a modern op-ed and illustrate the very tension we see today:
“Maconochie criticized the existing ‘penal apparatus (as being) nearly all retrospective (and) framed to punish the past’ whilst failing to ‘guard against the future.’ It was for this reason that the many reformative initiatives failed and he therefore rejected the usual compromise in which ‘(r)eformation and example must be conjointly provided for’, instead arguing for ‘dividing the processes employed into specific punishment for the past and specific training for the future’. The two objectives were ‘essentially different’, one ‘subdued the individual … in just retribution for past offences’ whilst the other ‘raised him again … (and) made him again worthy to be a free man.’”9
- 1He had also appealed some previous parole denials. See, e.g., MacKenzie v. Evans, 95 A.D.3d 1613 (N.Y. App. 2012); MacKenzie v. Dennison, 55 A.D.3d 1092 (N.Y. App. 2008).
- 2N.Y. Cons. Stat. § 259-1(2)(c)(A).
- 3Cassidy v. N.Y. State Bd. of Parole, 140 A.D.3d 953 (N.Y. App. 2016).
- 4See N.Y. Comp. Codes R. 8002.1 – 8002.3 (2018).
- 5Natasha Lennard, Why the Backlash to Former Black Panther Herman Bell’s Parole Risks Setting a Dangerous Precedent, The Intercept, Mar. 29, 2018 https://theintercept.com/2018/03/29/herman-bell-black-panther-parole-nypd-new-york/.
- 6N.Y. Exec. Law 259-b(6) (2018).
- 7Collaborating Across the Walls 20 CUNY L. Rev. 249, 262 (2017) citing Beth Schwartzapfel, A Parole Hearing in New York, With a Governor’s Blessing This Time, The Marshall Project (Jan. 5, 2017) https://www.themarshallproject.org/2017/01/05/a-parole-hearing-in-new-york-with-a-governor-s-blessing-this-time.
- 8Edward E. Rhine et al., The Future of Parole Release, 46 Crime & Justice 279 – 337, 286 (2017).
- 9John Moore, Alexander Maconochie’s ‘Mark System,’ 198 Prison Service J., 38 – 46, 39 – 40 (2011), citing Alexander Maconochie, Crime and Punishment: The Mark System 3 (1846) and Alexander Maconochie, General Views Regarding the Social System of Convict Management 7 (1839).
