Department of Corrections and Community Supervision

Rules & Regulations

Parole Board decision-making (Part 8001; sections 8002.(1)(a), 8002.2(a) and 8002.3 of 9 NYCRR)

Date filed with the Department of State (DOS): 12/03/2013

DOS #: CCS-51-13-00013

Date adopted: Not Applicable as this is a Notice of Proposed Rule Making

Description: To memorialize the Parole Board’s written procedures regarding parole release decision-making.

TEXT OF RULE

DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
BOARD OF PAROLE

Pursuant to the authority vested in me as Chairman of the Board of Parole, under Executive Law section 259-c, I hereby promulgate the following amendments to Title IX, Subtitle CC, of the Official Compilation of Codes, Rules and Regulations.

Section 1. Part 8001 is hereby repealed and a new Part 8001 is adopted to read as follows:

PART 8001. [MINIMUM PERIOD OF IMPRISONMENT]

Section 8001.1 Indeterminate sentences.

Inmates serving indeterminate sentences in which the court has not fixed the minimum period of imprisonment shall appear before the board within 120 days from the date of reception in an institution under the jurisdiction of the Department of Correctional Services pursuant to such sentence or as soon thereafter as practicable, at which time the board shall determine the minimum period of imprisonment to be served by such inmates prior to their appearance before the board for consideration for release on parole.

8001.2 MPI hearing.

(a) A minimum period of imprisonment (MPI) hearing shall be conducted by a member or members of the Board of Parole.

(b) The information to be considered at the MPI hearing shall include a complete statement of the crime for which the inmate has been sentenced, the circumstances of such crime, all available presentence memoranda, the nature of the sentence, the court in which he was sentenced, the names of the judge and district attorney, and copies of such probation reports as may have been made, as well as reports as to the inmate's social, physical, mental and psychiatric condition and history, the results of any background investigations conducted by the division, and the complete Family Court and Criminal Court record of such inmate.

(c) Upon conclusion of the hearing, the board member(s) shall set the minimum period of imprisonment to be served prior to parole consideration, and shall provide to the inmate reasons in writing for the minimum period of imprisonment set.

8001.3 Guidelines.

(a) Purpose.
The New York State Board of Parole has adopted a set of guidelines, the purpose of which is to structure its discretion with regard to MPI and release decisions. While the guidelines will be considered in each MPI and release decision, they are based on only two major factors-crime severity and past criminal history. They are intended only as a guide, and are not a substitute for the careful consideration of the many circumstances of each individual case.

(b) Content.

(1) The guidelines adopted by the New York State Board of Parole represent the policy of the board concerning the customary total time served before release for each category of offense, based on the crime of conviction and actual criminal conduct, and each category of offender, based on prior criminal history.

(2) The guidelines are subject to important limitations imposed by law:

(i) any court-imposed minimum must be served before parole release may be granted; and
(ii) all inmates, except those serving life sentences, are eligible to have their maximum sentence reduced by one-third for good time.

(3) To derive the guideline time range, the appropriate cell is located on the parole decision making grid where the offense severity and prior criminal history scores intersect. The offense severity score is located on the vertical axis, the prior criminal history score on the horizontal axis. The cell on the guideline grid where the two scores intersect indicates the suggested time to be served, based on these two major factors. The chart below presents the current New York State parole guidelines. For example, application of the guidelines in the case of an offense score of 5 and a prior criminal history score of 4 yields a range of 20-38 months.

GUIDELINES FOR PAROLE BOARD DECISIONMAKING

Offense Severity Prior Criminal History Score
Score 0-1 (Low) 2-5 (Moderate) 6-11 (Serious)
8-9 Most Severe Specific Ranges are not given due to the limited
most severe number of cases and the extreme
variation possible within the category
7 30-60 Months 40-72 Months 60-96 Months
6 22-40 Months 30-50 Months 46-72 Months
4-5 16-30 Months 20-38 Months 30-54 Months
2-3 14-24 Months 18-30 Months 20-36 Months
1 Least severe 12-18 Months 14-24 Months 16-28 Months

Prior to granting release on parole, the Board of Parole considers in all cases:

(i) institutional adjustment, including but not limited to program goals and accomplishments, academic achievements, vocational education, training or work assignments, and therapy and interpersonal relationships with staff and inmates;
(ii) performance, if any, as a participant in a temporary release program;
(iii) availability of adequate release plans, including community resources, employment, education and training and support services.

(c) Decisions outside the guidelines. The time ranges indicated above are merely guidelines. Mitigating or aggravating factors may result in decisions above or below the guidelines. In any case where the decision rendered is outside the guidelines, the detailed reason for such decision, including the fact or factors relied on, shall be provided to the inmate in writing.

(d) Revision of guidelines. The Board of Parole shall review the guidelines (including factors relating to prior criminal history and offense severity categories) periodically. In its discretion, the board may revise or modify the guidelines in whole or in part. Periodic revisions shall be made available by the office of the chairman and shall be filed with the Secretary of State.] Reserved.

§2. Subdivisions (a) and (b) of section 8002.1 of Part 8002 is amended to read as follows:

(a) Discretionary 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 or she will live and remain at liberty without violating the law and that his or her release is not incompatible with the welfare of society and will not so deprecate the seriousness of his or her crime as to undermine respect for the law.

(b) Earned eligibility. Inmates statutorily eligible to receive a certificate of earned eligibility pursuant to section 805 of the Correction Law, and who have been issued such certificates by the Commissioner of the Department of [Correctional Services] Corrections and Community Supervision, shall be granted parole release at the expiration of their minimum terms or as authorized by subdivision 4 of section 867 of the Correction Law, unless the Board of Parole determines that there is a reasonable probability that, if such inmate is released, he or she will not live and remain at liberty without violating the law and that their release is not compatible with the welfare of society.

§3. Subdivision (a) of section 8002.2 of Part 8002 is amended to read as follows:
(a) Each inmate shall be scheduled for a parole release interview at least one month prior to the expiration of the minimum period of imprisonment or parole eligibility date as fixed by the Department of Corrections and Community Supervision [, whether fixed by the court or the Board of Parole], or upon such reconsideration date as has been fixed previously by the Board of Parole.

§4. Section 8002.3 of Part 8002 is amended to read as follows:

§ 8002.3 Parole release decision-making procedures.

(a) [Cases wherein the guidelines have not previously been applied]. In making [the] any parole release decision [for those cases where the guidelines have not previously been applied (i.e., MPI's set by the board prior to January 1, 1978 and cases wherein the court imposed the minimum), the board shall apply the guidelines and in addition] the following factors shall be considered:

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

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

(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 one hundred forty-seven 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 two hundred twenty or article two hundred twenty-one of the Penal Law;

(7) the seriousness of the offense with due consideration to the type of sentence, length of sentence;

(8) 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;

(9) 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;

(10) prior criminal record, including the nature and pattern of the inmate’s offenses, adjustment to any previous periods of probation, community supervision and institutional confinement;

(11) the most current risk and needs assessment that may have been prepared by the Department of Corrections and Community Supervision; and,

(12) the most current case plan that may have been prepared by the Department of Corrections and Community Supervision pursuant to section seventy-one-a of the Correction Law.

(b) [Cases where the guidelines have previously been applied. In those cases where the guidelines have previously been applied, the board shall consider the following in making the parole release decision. Release shall be granted unless one or more of the following is unsatisfactory:

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

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

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

Cases where an earned eligibility certificate has not been issued. In those cases where an inmate has not been issued a certificate of earned eligibility by the Department of Corrections and Community Supervision, the Board of Parole, after considering the documents and information set forth in subparagraphs one through twelve of subdivision (a) of this section, shall apply the standard set forth in subdivision (a) of section 8002.1 of this part when determining the appropriateness for granting such inmate parole.

(c) Cases where an earned eligibility certificate has been issued. [At least one month prior to the expiration of the minimum period or periods of imprisonment fixed by the court or board, a member or members as determined by the rules of the board shall interview an inmate serving an indeterminate sentence for release consideration. When the minimum term of imprisonment is in accord with or greater than the time ranges for imprisonment contained within the guidelines adopted pursuant to this Part, parole release shall be granted at the expiration of such minimum term of imprisonment as long as such release is in accordance with the remaining guideline criteria. Where the minimum term of imprisonment, as fixed by the court or board, is less than the time range for imprisonment contained in the guidelines adopted pursuant to this Part, then the issuance of a certificate of earned eligibility shall militate in favor of granting parole release unless the member or members determine, in accordance with the remaining guideline criteria, that there is reasonable probability that the inmate will not live and remain at liberty without violating the law and that the release is not compatible with the welfare of society] In those cases where a certificate of earned eligibility has been issued to the inmate by the Department of Corrections and Community Supervision , the [b]Board, [shall consider the following in making the parole release decision:

(1) the guideline time-range matrix;

(2) the institutional disciplinary record;

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

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

(5) any available information which would indicate an inability to live and remain at liberty without violating the law, and that the release is incompatible with the welfare of society.]

after considering the documents and information set forth in subparagraphs one through twelve of subdivision (a) of this section, shall apply the standard set forth in subdivision (b) of section 8002.1 of this part when determining the appropriateness for granting such inmate parole.

(d) Reasons for denial. If parole is not granted, the inmate shall be informed in writing, within two weeks of his or her interview[,] of the decision denying him or her parole and the factors and reasons [in detail] for such denial. Such reasons shall be given in detail and not in conclusory terms. A date for reconsideration shall also be specified in its decision[.] and [S]such date shall be [within] not more than 24 months from the interview.

(e) Parole [program. Prior to his release, every inmate shall attempt to obtain suitable employment if he is able to work, a suitable educational program or other program specified by the board. The board may, however, release an inmate on parole without a definite offer of employment if it is satisfied that such inmate will probably be suitably employed, enrolled in a suitable educational or training program or other program specified by the board if so released on parole. Offers of employment, educational or training program must be filed with the parole representative of the office in the area from which the offer originates.] If the Board of Parole grants the inmate release following its interview and deliberations, it shall impose the initial set of conditions that will govern his or her community supervision in accordance with the pertinent provisions of Article 12-b of the Executive Law.

[(f) ODOP (open date own program). Where a decision to release an inmate to parole supervision has been rendered, but a satisfactory program has not been developed, an inmate may receive an ODOP (open date own program). Release shall occur as soon after such date as a satisfactory program is available. If a program is not developed within six months of the parole release hearing, the inmate will again appear before the board for a reconsideration of his status.]

 

Note:

Changes in the proposed text are indicated by underlining new text and [bracketing] text to be deleted. Rules that are new are presented as regular text without underlining or brackets. New and/or repealed rules are noted in the description heading at the top of the document.

The complete listing of New York Codes, Rules, and Regulations (NYCRR) is available online through the NYS Department of State website.