NYS Department of Corrections and Community Supervision 

Department of Corrections and Community Supervision


JANUARY 15, 2008



Senator Nozzolio, distinguished members of the Senate Crime Victims, Crime and Correction Committee, good afternoon. I am Brian Fischer, Commissioner of the Department of Correctional Services, and I thank you for the opportunity to be here today to give testimony on this important subject.

The term Presumptive Release is often misunderstood. It is not an early release program. A Presumptive Release inmate does not earn the right to be released from prison any earlier than would otherwise have been the case. Inmates who qualify for, and acquire Earned Eligibility Merit certificates, are considered for release on the same date they would be released by the Parole Board if approved. Presumptive Release parallels the Parole process except that this program applies exclusively to inmates who were sentenced for a non-violent crime and have no prior history of a violent conviction.

The Presumptive Release initiative was enacted into law by the Legislature as part of the Laws of 2003 and implemented by DOCS on October 1, 2003. The Drug Reform Law of 2004 added Supplemental Merit, which DOCS implemented in February 2005. Together, the programs allow inmates who are serving indeterminate sentences for certain non-violent crimes, and who have no history of violent crime, to be released to Parole supervision without appearing before the Board of Parole.

Presumptive Release essentially is a program that allows release decisions for certain inmates to be made by Department of Correctional Services officials working in Central Office, rather than by members of the Board of Parole.


The Department of Correctional Services is selective in granting Presumptive Release. That underscores our commitment to public safety. It also ensures that deserving non-violent inmates return to the community prepared by having participated successfully in appropriate treatment and programs.

To be eligible for Presumptive Release, inmates must have no serious disciplinary infractions, have actively pursued individually prescribed treatment or educational programs, have not filed a frivolous lawsuit, have no outstanding warrants or alien status issues and have met a number of other special conditions. A-1 drug offenders are not eligible for Presumptive Release.

Department Objective for the Presumptive Release Program

The advantage of this program is that it has reduced some of the workload of the Parole Board by removing cases of inmates who meet the obvious criteria for Parole release, thus enabling the Board to better fulfill its responsibilities to evaluate all other inmates. The procedures have also been carefully crafted so as not to disadvantage any inmate who is not granted Presumptive Release.

The Presumptive Release process relies exclusively upon a review of the appropriate paperwork, and if anything out of the ordinary surfaces, the Central Office staff will defer to the Parole Board to make the release decision. In all such scenarios the Presumptive Release staff is not concluding one way or the other that the inmate is a good or poor candidate for release on Parole. Instead, staff is simply concluding that under the particular circumstances for the concerned inmate, members of the Parole Board following a face-to-face interview with the inmate can best make the parole release decision. At such an interview, the Board members can assess the inmate�s demeanor and ask any questions deemed relevant.

Presumptive Release Process

Candidates for Presumptive Release fall into major two categories: Supplemental Merit Time and Merit Time. The Supplemental pool consists of drug offenders only, who have met at least two of the five milestones set by the Legislature to permit them consideration for an earlier release. The Merit Time pool includes drug offenders and many other categories of non-violent offenders who likewise meet all other requirements.

The Presumptive Release identification and review of an inmate involves four (4) steps. First, the Department�s centralized computer, using a program developed by the Management Information System staff, identifies individuals on a monthly basis who may be eligible for Presumptive Release. Second, facility guidance staff reviews the inmate's records prior to his or her Supplemental Merit Time Eligibility Date, Merit Time Eligibility Date, or conventional Parole Eligibility Date. Third, the inmate�s program history and complete institutional record are reviewed by a Senior Counselor, the facility�s Deputy Superintendent for Programs and the Superintendent to identify any behavior that would make the inmate ineligible for Presumptive Release. Fourth, staff in Central Office reviews each case for additional factors, including:

After the review by Central Office, my designee makes a Presumptive Release determination. The decision to grant or withhold a Presumptive Release is final; there is no appeal process. However, a Presumptive Release can be revoked any time prior to an inmate�s actual release if the inmate commits a serious disciplinary infraction or fails to continue to pursue his or her assigned program plan.

Release Rates

Since the inception of the program in 2003, a total of 6,783 non-violent inmates have been approved for Presumptive Release.

In 2005, a total of 980 inmates who were convicted of drug offenses were eligible for Presumptive Release at their Supplemental Merit Time dates; 810 were approved for release - an 83% approval rate.

An additional 1,414 inmates convicted of drug and other non-violent offenses were eligible for Presumptive Release at their merit time eligibility dates. Of those, 877 were approved for release - a 62% approval rate.

In 2006, a total of 882 inmates who were convicted of drug offenses were eligible for Presumptive Release at their Supplemental Merit Time dates. Of them, 659 were approved for release - an 80% approval rate.

An additional 1,381 inmates convicted of drug and other non-violent offenses were eligible for Presumptive Release at their Merit Time eligibility dates. Of those, 782 were approved for release - a 57% approval rate.

For the first ten months of 2007, 300 inmates convicted of drug offenses were eligible for Presumptive Release at their Supplemental Merit Time dates; 244 were approved - an 81% approval rate. An additional 1,162 inmates convicted of drug and other non-violent offenses were eligible for Presumptive Release at their Merit Time eligibility dates. Of them, 599 were approved for release - a 52% approval rate.

It is important to point out that the number of eligible inmates has continued to decline due to the shift from indeterminate sentences to determinate sentences for drug offenders. Inmates with determinate sentences are not eligible for the Presumptive Release program. This decline will continue and result in fewer and fewer inmates being released through the Presumptive Release Program. On the other hand, the number of releases based on determinate sentences will continue to increase over the same time.

It should also be pointed out that in 2006, in those cases where the Department of Correctional Services did not grant Supplemental Merit Release, the Parole Board granted release to 53% of those cases and for those not granted Presumptive Merit Release by the Department, the Parole Board granted release to 41% of those cases.

Recidivism Rates

In a three (3) year follow-up of inmates released by Presumptive Release in 2004, the recidivism rate was 10% for new felony convictions and 27% returned as Parole violators for a total rate of 37%. This is in contrast with a 44% recidivism rate for inmates released after being denied Presumptive Release - 9% due to new felony convictions and 35% returned as Parole violators.

In a two (2) year follow-up study the results showed similar rates. Those given Presumptive Release had a recidivism rate of only 7% due to new felonies and 20% returned as Parole violators for a total of 27%. Those denied Presumptive Release showed a 36% rate of recidivism - 7% due to new felonies and 29% returned as Parole violators.

By encouraging good behavior and program participation in prison, Presumptive Release helps drive down our overall recidivism rate and maintain safety in our 70 institutions

Based on these findings, and the process used by the Department of Correctional Services, it is reasonable to conclude that Presumptive Release is a valid approach to providing treatment and community supervision to low-risk, non-violent offenders.