§ 8002.1 Parole release interview.

§ 8002.2 Parole release decision-making.

1. When making any parole release decision pursuant to section 259-i(2)(c)(A) of the Executive Law for a minor offender, the Board shall, consider the following:

i. The diminished culpability of youth; and

ii. Growth and maturity since the time of the commitment offense.

2. Information presented that the hallmark features of youth were causative of, or contributing factors to, a minor offender’s commitment offense, should not, in itself, be construed to demonstrate lack of insight or minimization of the minor offender’s role in the commitment offense. The hallmark features of youth include immaturity, impetuosity, a failure to appreciate risks and consequences, and susceptibility to peer and familial pressures.

(1) the institutional record, including program goals and accomplishments, academic achievements, vocational education training or work assignments, therapy and interactions with staff and inmates;

(2) performance, if any, as a participant in a temporary release program;

(3) release plans, including community resources, employment, education and training and support services available to the inmate;

(4) any deportation order issued by the Federal government against the inmate while in the custody of the Department of Corrections and Community Supervision and any recommendation regarding deportation made by the Commissioner of the Department of Corrections and Community Supervision pursuant to section 147 of the Correction Law;

(5) any statement made or submitted to the Board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated;

(6) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the Penal Law for a felony defined in article 220 or article 221 of the Penal Law;

(7) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney and the attorney who represented the inmate in connection with the conviction for which the inmate is currently incarcerated, the pre-sentence probation report, as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to the inmate’s current confinement; and

(8) prior criminal record, including the nature and pattern of the inmate’s offenses, age at the time of commitment of any prior criminal offense, adjustment to any previous periods of probation, community supervision and institutional confinement.

The Board of Parole has determined that the changes made to the last published rule are non-substantive and do not necessitate a revision of the original Regulatory Impact Statement published in the Notice of Proposed Rule Making.

Those changes made to the rule are summarized as follows:

Section 8002.2 of Title 9 of the NYCRR were changed to remove extraneous punctuation and to clarify certain code language regarding the factors and principles to be considered. Code language regarding the risk and needs assessment included in the risk and needs principles being the periodically validated assessment administered by DOCCS and language regarding information presented by the inmate regarding the hallmark features of youth in the context of minor offender consideration which some commenters found unclear. Additionally language regarding the transitional accountability plan created pursuant to Correction Law § 71-a, was moved into its own subdivision and the subdivisions were renumbered accordingly.

Section 8002.3(b) of Title 9 of the NYCRR was changed to clarify code language regarding the board decision requirements applying to all factors and principles described in Section 8002.2.

A Revised Regulatory Flexibility Analysis for Small Business and Local Government is not being submitted with this notice, as the changes made to the previously published rule text provide clarification as to the application of the proposed text and do not alter or increase any effect of the rule upon small businesses or local governments. Small businesses and local governments have no role in the Parole Board’s parole release decision-making function. The proposed rulemaking will only affect the Parole Board’s decision-making practices for inmates confined in State correctional facilities.

A Revised Rural Area Flexibility Analysis is not being submitted with this notice as the changes made to the previously published rule text provide clarification as to the application of the proposed text and do not alter or increase any effect of the rule upon rural areas. The proposed rules will only affect the Parole Board’s decision-making practices for inmates confined in State correctional facilities.

A Revised Job Impact Statement is not being submitted with this notice, for the changes made to the previously published rule text provide clarification as to the application of the proposed text and will not have a substantial adverse impact on jobs and employment opportunities in New York State nor do the proposed rules impose any reporting, record keeping or other compliance requirements upon employers. The proposed rules only affect the decision-making practices of the Parole Board for inmates confined in State correctional facilities.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2022, which is no later than the 3rd year after the year in which this rule is being adopted.

Following publication of the Board of Parole’s (“Board”) proposed rulemaking on September 28, 2016, the Board received in excess of 400 submissions, many including multiple individual comments, during the statutory 45 day comment period. The comments came from a wide cross-section of the public, including incarcerated individuals, families and friends of incarcerated individuals, advocacy and support organizations, bar associations, academics, attorneys, and elected officials. Following its consideration of the comments, the Board determined that non-substantial changes to the rules proposed by the September 28, 2016 Notice of Proposed Rule Making were warranted to provide clarification. During a regularly scheduled business meeting held on March 27, 2017 at which a quorum was present, the Board voted unanimously to adopt the rules as revised. Given the number of comments received, separately addressing the substance of each letter is not practical, particularly given the common themes, observations and suggestions contained in a majority of the comments; accordingly, the substance of the concerns raised are summarized and addressed below.

One of the primary concerns was that proposed Section 8002.2 mis-identified the risk and needs assessment and “minor offender” status as “factors” to be considered in release determinations. The Board agrees these considerations are distinct from the statutory factors enumerated in Executive Law § 259-i(c)(A). Accordingly, the Board decided to clarify this by omitting “factor” from section 8002.2’s heading, moving language relating to consideration of the case plan, which is required by Correction Law § 71-a, to a new subdivision (b) and renumbering the remaining subdivisions accordingly. Executive Law § 259-i(c)(A)’s factors now are contained in subdivision (d), which reiterates these factors must be considered in all release determinations consistent with the statutory parole scheme.

As for comments recommending retention of the Earned Eligibility Certificate standard or alteration of the standard in other cases, the Board cannot alter the standards applied in its decision making. Executive Law § 259-i(c)(A) provides that “[d]iscretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law.” Correction Law § 805 provides for release of inmates who have received a certificate of earned eligibility unless the Board determines “there is a reasonable probability that, if such inmate is released, he will not live and remain at liberty without violating the law and that his release is not compatible with the welfare of society.” Although these standards are no longer repeated in the regulation, this in no way modifies the statutory mandate requiring their application. Thus, the Board declines to revise its rules to provide for standards different from what is provided under the laws of New York. These comments are addressed further below together with specific attention to each subdivision of the proposed regulation.

§ 8002.2(a): Risk and Needs Principles

Some comments expressed concern about proposed Section 8002.2(a)’s specific, or exclusive, reference to the COMPAS instrument as well as concerns that the language was too limiting to comply with Executive Law § 259-c(4). The Board has considered these comments and determined that minor changes would address these concerns by making explicit that the Board shall be guided by risk and needs principles; more specifically, “a periodically-validated risk assessment instrument”, thus, replacing the term “COMPAS.” Regarding the concern that the periodically-validated risk assessment instrument may not be applicable to some subsets of the inmate populations, the Board notes that the proposed regulation allows other risk and needs assessments or evaluations to be considered and any instrument used is not dispositive. As for the suggestion that a periodically-validated risk assessment instrument be prepared for juveniles in the custody of the New York State Office for Children and Family Services (OCFS), the Board has no authority over OCFS to implement this.

Many comments suggest creating a presumption in favor of release when scores on a periodically-validated risk assessment instrument are low. The creation of any such presumption is a legislative function and would conflict with the requirements of Executive Law § 259-i. The new regulation is also intended to increase transparency in the Board’s decision making by providing an explanation when the Board departs from any scale in denying an inmate release. Additionally, the Board will state the reasons for denial in detailed, factually individualized and non-conclusory terms after applying the factors of Executive Law § 259-i. No further changes were made in response to these comments.

In response to concerns regarding the meaning of “departs from” scores on a periodically-validated risk assessment instrument, the Board has clarified that it will specify any scale within the assessment from which it departed that impacted its decision.

§ 8002.2(c): “Minor Offenders”

Many comments suggest the proposed regulation fails to incorporate the constitutionally required standard and procedural protections for minor offenders. Some argue youth is not simply a mitigating factor and the applicable standard must be whether the inmate has demonstrated “maturity and rehabilitation.” Others argue consideration of the inmates’ reduced culpability and subsequent maturation should outweigh the factors enumerated in statute. Yet, another suggests diminished culpability of youth is always a mitigating factor. Suggested procedural safeguards include, for example, representation by counsel at the Board interview. While the Board has clarified that age is not a statutory factor and moved this subdivision to confirm its distinct status as a principle informing the Board’s consideration as a whole, the Board declines to make additional changes in response to these comments. The Board disagrees with the suggestion that State (or Federal) precedent abrogates the requirements of Executive Law § 259-i. The Board must consider the applicable statutory factors in every decision and has the discretion to weigh each factor as it deems appropriate. Consequently, the Board believes that the proposed regulations embody the spirit of applicable New York precedent by providing meaningful consideration of the diminished culpability of youth and the individual’s growth and maturity since the time of the commitment offense, while also following the requirements of the Executive Law. The suggested procedures are not required by law, and, in some cases, fall outside the Board’s authority. Additionally, it should be noted that since New York law establishes parole board release review as non-adversarial interviews, not contested hearings, there is no right to counsel.

Several comments contend proposed Section 8002.2(c)(2) is confusing and could lead to its application in a manner that undermines the paragraph. Several also suggest expanding “hallmark features of youth” or clarifying the list is not exhaustive. The Board agreed and clarified this language to ensure an inmate’s presentation of information regarding their youth at the time of the offense will not be construed to demonstrate a lack of insight or the minimization of the instant offense. This does not preclude the Board from concluding that a minor offender has demonstrated a lack of insight or minimized the offense based on other information or observation. The Board also notes that the hallmark features of youth “includes” some characteristics, indicating the list is not exhaustive.

As for comments that suggest expanding the subdivision to encompass inmates who committed offenses before the age of 25 (or as youths generally) and without regard to sentence length as well as to discount disciplinary records based on youth, nothing in the Executive Law or in current State or Federal case law supports these comments. To the extent comments suggest this rulemaking address the incarcerated elderly population, nothing in the law requires advanced age to be a separate factor or consideration. Moreover, because medical parole, in some instances related to advanced age, is governed by Executive Law § 259-r and § 259-s, any regulations within this area must be in harmony with those statutory provisions.

§ 8002.2(d): Factors to be Considered

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 suggest specificity as to how the factors are weighed, a requirement to “substantially” consider the factors, or the creation of presumptions in favor of release. A number of comments suggest the Board eliminate separate consideration of some (but not all) statutory factors addressed by a periodically-validated risk assessment instrument – namely, the instant offense, criminal history and disciplinary history. To the extent comments argue that the regulations should alter the requirement that the Board consider all applicable factors set forth in Executive Law § 259-i(c)(A) or require the Board to assign any particular weight to any factor, the Board disagrees as the statutes governing parole consideration remain unchanged. No rulemaking could alter the statutory standards for making discretionary release determinations or the requirement that the Board weigh the statutory factors in every determination. Accordingly, no changes were made in response to these comments.

§ 8002.3(b): Denial Decisions

Many comments suggest the regulations require the Board to state in writing what steps an inmate should take to improve their chances of parole in the future. An independent evaluation must be made by the Board each time an inmate appears before the Board based on the existing record and interview. The new regulations reinforce that detailed reasons must be articulated for denial of release. Accordingly, it is anticipated that future denial decisions will help inmates to better understand the decision and what more, if anything, they can do to facilitate a legally appropriate release.

To the extent comments suggest that reasons for denial must be premised upon factors that are “inherently correctible,” this would conflict with the requirements of Executive Law § 259-i(c)(A) which delineates the factors which must be considered.

As for comments concerning reliance on official statements (i.e., statements from prosecutors, defense attorneys and the sentencing court) and victim impact statements, such statements, when they exist, are factors that must be considered.

Additional Submissions

The Board received numerous submissions on topics outside the scope of this rule making, including complaints about individual Board decisions, recommendations regarding particular release candidates, the appointment and training of Commissioners, and letters from inmates who have never appeared before the Board. As these submissions did not address the proposed rulemaking, no changes were made in response. However, where appropriate, these communications were directed to relevant parties for further action.