Parole Board Ordered to Apply Retroactively Rehabilitation Factor

Received by email from NYC Jericho:

John Caher, New York Law Journal, December 27, 2011

A judge has ordered the state parole board to retroactively apply a new provision requiring it to consider the rehabilitation of an inmate and not base a denial of release on an offense that may have occurred decades in the past.

The decision, if upheld, could entitle scores of inmates to new parole interviews.

Orange County Supreme Court Justice Lawrence H. Ecker, in what he says is a case of first impression, reviewed a recent revision of Executive Law §259(c), and held that a man who came up for parole before a change in the law is nonetheless entitled to benefit from that law.

The revision requires the parole board to look beyond the instant offense and consider whether the applicant for parole has been rehabilitated.

In Matter of Thwaites v. New York State Board of Parole, 2011 NY Slip Op 21453, Justice Ecker said the board, in denying the inmate’s release, relied on “past-focused rhetoric, not future-focused risk assessment analysis.” He directed the parole board to afford Douglas Thwaites a new interview.

“The court finds the Board’s decision denying parole in this case to be arbitrary and capricious, irrational, and improper based upon the Parole Board’s failure to articulate any rational, nonconclusory basis, other than its reliance on the seriousness of the crime,” Justice Ecker wrote.

Douglas Thwaites was convicted of murder and assault in Brooklyn in 1986 and sentenced to a 25-year-to-life term. Mr. Thwaites, now 67, stabbed his estranged wife nine times, killing her, and also stabbed but did not kill a family friend who attempted to intervene, records show.

The inmate, who was interviewed by the parole board on March 16, 2010, was denied release in a boilerplate decision concluding that “discretionary release is inappropriate at this time and incompatible with the welfare of the community. To hold otherwise would so deprecate the seriousness of your crime as to undermine respect for law.”

The exact language is routinely cited in parole decisions.

Several months after Mr. Thwaites denial, the revision of Executive Law §259(c) took effect. It requires the board to “incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board [and] the likelihood of success of such persons upon release.”

Justice Ecker said there is no question the board did not apply in Mr. Thwaites’ case standards that had yet to take effect. Regardless, he said the “remedial” objective of the legislation requires reconsideration of the inmate’s parole bid.

Mr. Thwaites, a prisoner at the Mid Orange Correctional Facility in Warwick, argued pro se.

The state was defended by Assistant Attorney General Jeane L. Strickland Smith. Jennifer Givner, spokeswoman for the attorney general, said the decision is under review.

In another parole decision last week, the Appellate Division, Third Department, refused to reinstate an action on behalf of violent felons who contend the parole board has systematically violated state law in routinely denying release to Class A-1 convicts. The same issue was unsuccessfully litigated in federal court.

Graziano v. Evans, 512150, is the state court version of Graziano v. Pataki, 7:06-cv-00480, a Southern District case dismissed a year ago by Judge Cathy Seibel.

Judge Seibel rejected the plaintiffs’ constitutional claims and the state courts have rejected their statutory claims.

The Third Department affirmed Albany Acting Supreme Court Justice Roger D. McDonough in dismissing the state court action.

Justice McDonough had found that the lead plaintiff, Peter Graziano, had and availed himself of an opportunity to challenge his denial of parole, and res judicata bars the subsequent action. The Third Department, in an opinion by Acting Presiding Justice Thomas E. Mercure, agreed.

Robert N. Isseks of Middletown represents the plaintiffs.

Assistant Attorney General Steven C. Wu defended the state.

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