The Raging Disaster that Is the New York Judiciary

New York penal law provides for what are known as "indeterminate sentences," whereby there is a fixed minimum time (which is the initial parole eligibility date) and a fixed maximum (which, for crimes such as murder, can be for the life of the inmate).  Once there is parole eligibility, the Board of Parole has discretion to grant the parole before the maximum sentence time.  

New York Executive Law §259-i(c)(A) prescribes the requisite standards for the Board's decision to grant (or to not grant) release to the inmate prior to the completion of the maximum sentence term.  The Parole Board is required to strike a balance of fairness to both the public and the inmate. "Fairness" to the inmate does not necessarily require that the inmate be released from incarceration; what "fairness" does require is that the inmate be accorded due process as specified by law.

Once a New York inmate becomes eligible for parole, he is entitled to a new hearing every two years if parole has not been granted.  The victims and their families are thus subjected to a biennial cycle of uncertainty and stress as they submit their statements to the board and wait in dread of the board's decision.

Of late, the New York State Board of Parole has been subjected to criticism that it has been overly fixated with the "seriousness of the offense" factor in denying parole to inmates and, in doing so, depriving the inmate of the due process to which he is entitled.  

On 27 May 2015, New York state Supreme Court justice Sandra Sciortino found that the Parole Board misapplied Executive Law § 259-i(c)(A) and did not follow the requisite procedures for reaching its decision to deny Michael Cassidy parole.  She found that the board's written decision denying parole to Cassidy failed to establish a nexus between the facts of the crime and the probability that Cassidy's release will or will not be successful and consistent with the good of society.

All of those things were required in a prior order by Justice Sciortino, and so, the judge found the board in contempt of her prior order and required the board to revisit its denial decision within 60 days, and to pay Cassidy's legal expenses associated with the action.

(Do not be overly impressed by the name of the tribunal.  For reasons rooted more in history and nostalgia than in logic, the "Supreme Court" is the lowest court of general jurisdiction in New York, each county having one.  "Supreme Court" decisions are appealable to the "Supreme Court Appellate Division," and from thence to the Court of Appeals of the State of New York, the highest state court in New York.)

Justice Sciortino's order did not require the board to grant Cassidy's application for parole; it did not require the board to give any particular weight to any of the mandatory consideration factors; and it did not interfere with any future Parole hearings that may pertain to Cassidy.  The board granted Cassidy another hearing, apparently conducted within the parameters of Justice Sciortino's order, and Cassidy was once again denied parole.  Cassidy remains incarcerated, and his next parole hearing is slated for December 2018.

Laurie Kellogg evokes far more public sympathy than does Michael Cassidy.  Ruling on Ms. Kellogg's appeal of her denial of parole, on 20 March 2017, New York State Supreme Court Justice Arthur Engoron similarly found that:

... what the Parole Board has done here is to re-sentence petitioner, which the law does not authorize it to do.  The Parole Board is not all-powerful; nor does not write on a clean slate. It may not act as an appellate court to the sentencing judge.  It is not a super-legislature, tasked with sentencing discretion.

But Justice Engoron went even farther than his sister Justice Sciortino; he ordered the board to actually grant parole to Ms. Kellogg.  The "immediate release" part of Justice Engoron's order was subsequently reversed on appeal, the Appellate Division implicitly finding Justice Engoron's directed remedy to be an excess of his own authority, on par with the very excesses he found in the board's actions.  Ms. Kellogg's next parole hearing is slated for May 2018 (and may have already occurred by the time this is posted, inasmuch as the board embargoes posting the results of its hearing calendar for five business days).

(Full Disclosure: Arthur and I were each included in the same group admission to practice before the United States Supreme Court, and I subsequently attended his robing ceremony when he ascended to the bench.)

The infamous and deadly 1981 Brinks Robbery in Nanuet, New York, was carried out by members of the May 19 Communist Organization, a violent radical revolutionary group formed by members of the Black Liberation Army and the Weather Underground.  Three people were killed in the robbery, including Nyack Police sergeant Edward J. O'Grady, Jr. and Officer Waverly L. Brown.

Judith Clark, who drove a getaway car in the robbery, was convicted of felony murder and sentenced to three consecutive 25-years-to-life terms of imprisonment.  In December 2016, New York governor Andrew Cuomo commuted Ms. Clark's sentence, thereby making her immediately eligible for parole.  (This was a political risk on the part of Cuomo; just ask Mike Huckabee.)

As it typically does in the cases of violent offenders, the board denied Ms. Clark's first application for parole.  On 26 April 2018, acting New York State Supreme Court justice John J. Kelley overturned the New York State Board of Parole's denial of parole for Judith Clark and ordered a rehearing.  

There are many valid and compelling arguments both for and against granting Ms. Clark's parole.  As mentioned above, the New York statute requires a finding that release on parole will "not so deprecate the seriousness of [the] crime as to undermine respect for law."

If respect for the law is a salient factor (as it well should be), then several matters come into play against Judith Clark.  In addition to two dead law enforcement officers, the trend of imposing civil if not criminal liability upon accomplices and facilitators is on the increase, most notably in the fight against terrorism.  New York court decisions are cited as precedent not only in other states, but also in foreign countries (including Israel, where terrorism is a salient problem for the legal system).  Undue lenity for crime accomplices and facilitators cannot help but impede effective legal remedies against terror.

Ironically, Judith Clark, who embarked upon her crime to make a political statement, nay, to violently reshape the political order, is now entangled in politics as she seeks her freedom.  While her release would damage respect for the law by detracting from sanctions against cop-killers and terrorists, her continued incarceration would cast additional shadows upon the due processes of the New York State Parole Board.

New York State's parole system is broken, and is under siege.  The Parole Board is under too many distractive  influences from political and judicial quarters, and lacks the direction to function as intended.   The situation is not stable, and something will have to give way if there is no overhaul.

While indeterminate sentences avail the corrections professionals valuable incentives to offer inmates in return for good behavior and rehabilitation, the same lack of certainty exacerbates the angst and anguish of victims and their survivors, who are biennially compelled to relive the cycle as long as the criminal remains alive and incarcerated; determinate sentences would remove much of the uncertainty for the crime victims and their families.  There are some crimes which do warrant life imprisonment without the possibility of parole (if not capital punishment).  The whole legal framework for parole in New York needs to be recast. 

The New York State Board of Parole must now make parole approval and denial decisions not only for Judith Clark, but for many other inmates dumped into its lap by New York's dysfunctional system.  I do not envy the members of the Board in the least.

Kenneth H. Ryesky is a freelance writer, currently based in Israel, who has taught business law and taxation at Queens College CUNY.  He is admitted to the Bars of New York, New Jersey, Pennsylvania, and the United States Supreme Court.