Parole reform law yet to be executed, attys say
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Governor Kathy Hochul at a bill signing ceremony for the Less is More Act with the city’s six district attorneys and Lt. Governor Brian Benjamin in September. In a new legal filing, the Legal Aid Society claims the state has yet to implement the law. Photo via Hochul/Flickr
By Jacob Kaye
It’s only been a few days since the implementation of a recently passed law that aims to eliminate incarceration for people who commit a technical parole violation, but public defense attorneys say the state has failed to live up to its promise.
Governor Kathy Hochul signed the Less is More Act into law in September – calling the bill “one step” toward making New York’s criminal justice system more fair — as Rikers Island was in the midst of a crisis.
However, despite her support of the law, Hochul said she legally couldn’t implement Less is More until March 1, 2022, as designated by the legislation.
“I would like nothing more than to implement the law now,” she said in September. “I legally cannot change the effective date, only the legislature can, we examined this and looked hard.”
But as March 1 came and went, attorneys at the Legal Aid Society said in a motion filed Wednesday that the city’s Department of Correction and the state’s Department of Corrections and Community Supervision was illegally detaining nearly 100 people who allegedly committed a parole violation prior to the law’s enactment.
Under the Less is More Act, people accused of violating their parole are supposed to be given a hearing on the offense within 24 hours of their detention – prior to the passage of the law, people may be held for weeks or months in jail awaiting a hearing. The writ of habeas corpus filed in a Bronx Supreme Court argues that 91 people who were detained before March 1 are being held illegally.
“Because DOCCS has not produced petitioners for a recognizance hearing, and because it has not shown that petitioners present such risk of failing to appear or that there are no non-monetary conditions that will reasonably assure their appearance, their detention is illegal and they must be released,” the filing reads. “In fact, DOCCS has informed The Legal Aid Society that it does not intend to produce any person detained on a parole warrant before March 1, 2022 for a recognizance hearing—a stark contradiction to the Governor’s promise of a fairer criminal justice system.”
A spokesperson from the governor’s office said the language of the law doesn’t allow for people to be grandfathered into Less is More.
“Governor Hochul signed the common sense reforms in the Less Is More Act into law last year, and we remain committed to implementing the law as written and passed by the Legislature, which includes the effective date for implementation of new procedures for parole revocation hearings on March 1,” said Hazel Crampton-Hays, the press secretary in the governor’s office. “If the legislature passes any modifications to the law, the Governor will review them.”
DOCCS initially declined to comment on the pending litigation but later offered a statement on the implementation of the law.
“Under the direction of Governor Hochul, we have been proactive in applying the spirit of the law as it pertains to new technical warrant and absconder dispositions to qualified parole violators currently in-custody,” a DOCCS spokesperson told the Eagle.
The spokesperson added that, as of Feb. 25, around 990 parole warrants were lifted by the parole board in upstate New York and Long Island – 438 of those parolees were released from local custody.
In New York City, 563 warrants were lifted and 458 parolees were released from Rikers Island.
Philip Desgranges, a supervising attorney at the Legal Aid Society’s Special Litigation Unit, told the Eagle that he believes there’s no reason why people currently detained on parole violations shouldn’t also be eligible for a hearing.
“They have taken the really arbitrary perspective that if you were arrested and detained on Feb. 28, on a parole warrant, you are not eligible for a recognizance hearing,” Desgranges said. “But if you were arrested and detained on March 1 on a parole warrant, then you are – that has no basis in the law and it obviously is completely unfair.”
The law, sponsored in the Senate by now-Lt. Governor Brian Benjamin, was passed in an effort to reduce potentially unnecessary detention – it specifically took aim at situations where someone on parole commits a technical violation, including driving, drinking alcohol or hanging out with someone who has a criminal record while on parole, which would otherwise lead to automatic detention.
Hochul ordered the release of 191 people from Rikers Island being held on technical parole violations the day of the Less is More Act signing ceremony.
“[Hochul] took a proactive approach to target individuals who would be released on March 1, because they're in on a technical and get them out of Rikers given the humanitarian crisis,” Desgranges said. “Here, we're seeing a completely different approach, where, despite the governor's rhetoric that Less is More is going to bring fairness and justice to our parole revocation system, the state is acting in a way to narrow the benefits.”
The law also requires that parole hearings be held in community courts, instead of on Rikers Island, where advocates say there is less transparency.
However, DOCCS has yet to begin using courtrooms in borough facilities, according to the Legal Aid Society.
In a statement to the Eagle, the DOCCS spokesperson said that “recognizance hearings cannot be held in community courtrooms.”
“These hearings are judicial proceedings heard by the criminal courts, and can only be heard by a criminal part judge,” the spokesperson said. “The department is in the process of scheduling administrative parole revocation hearings in community court room space, provided by OCA, in the coming days.”
Office of Court Administration spokesperson Lucian Chalfen said that the OCA has identified five courtrooms in Manhattan and Brooklyn and has made them available to the state’s corrections department.
“OCA has been training judges and staff on Less is More for the past three months through extremely comprehensive written materials and a 45 minute webinar,” Chalfen added. “Also, there has been extensive discussions with their Supervising Judges who had 2 additional hours of training.”
Desgranges and his colleagues argue that while DOCCS held meetings with public defenders and others on the law’s implementation, it didn’t make enough of an effort to keep stakeholders apprised of its progress.
“The State Department of Corrections and Community Supervision, the stakeholder that is responsible for the implementation of the new law, has been consistently either absent or unengaged in these meetings in terms of providing information on what their plans were, and what measures they were taking to effectively implement the law starting on March 1,” Desgranges said.
A DOCCS spokesperson said the agency, prior to March 1, held “high-level internal meetings to begin planning for the implementation of this major overhaul of the parole revocation process.”
“Since that time, we have worked diligently internally and with the OCA, and have also remained engaged with public defenders for several months, including holding multiple calls just in the last week,” the spokesperson added.
