CPR has been in the forefront, advocating for fair parole practices in New York since it was founded in 1999. Since then, other advocates and people who care about justice have looked at the issue of parole. Right now, the Fair Parole Act is the major piece of proposed legislation to fundamentally change parole as we know it, creating a presumption in favor of release to parole supervision after the minimum period of imprisonment (MPI) has been served, based on good behavior, that is, a clean disciplinary record and rehabilitational accomplishments. Indeed, Executive Law 259-i, which governs the parole decision-making process, implies this presumption in favor of parole after serving the MPI. In fact, when Governor Carey signed the bill into law, what would become Executive Law 259, in his 1977 memorandum in support of the bill, he said as much. Since then, parole has become a political football, with the Executive Law not only being sacked during the Pataki administration, but also subjected to numerous personal fouls. Nevertheless, there seems to be a wind change, something in the air, an opportunity for more than simple reform, not only of parole, but of other criminal justice issues.
The state of parole is simply an indicator of a failing criminal justice system. There are a number of other issues that have found their way on the criminal justice radar: felony-murder; raising the age of criminal responsibility from 16- to 18-years-old; people aging in prison; and higher education in prison.
Felony-murder is a strict liability crime, which holds nonkilling “codefendants” charged with various felonies with murder when one of their confederates kills during the course of one of those felonies. The law proclaims that they are also guilty of murder, even if they were getaway drivers. There are many theories that are actually no more than attempts at justifying why the law as it is, adopted by the United States from Great Britain during colonial days, which was abolished by that nation in 1957, should not be abolished. Mostly the opposition is from District Attorneys who get a pass on proving each and every element of the crime, a Constitutional mandate, not to mention that there are degrees of guilt and/or responsibility, revolving around mens rea (“guilty mind”) and individual moral culpability. The felony-murder rule has been called an “anachronism,” a holdover from the days when most felonies were punishable by death, and thus there was no reason to distinguish the punishment from one felony over another, since someone found guilty of robbery would be hung as well as someone found guilty of murder.
New York has the dubious distinction of being one of two states, the other being North Carolina, that charges children as adults, at age 16, not to mention the Juvenile Offender Law, which has harsher, that is, quasi-adult punishments, for 13-, 14- and 15-year-olds charged with certain crimes. Both Governor Andrew Cuomo, and Kenneth Thompson, the new District Attorney of Kings County (Brooklyn), have publicly stated that we need to change the law that charges 16- and 17-year-olds as adults.
Another issue, a direct result of unfair, and some would argue illegal, parole practices, that is, repeated parole denials, is leading to people aging in prison. There is a movement, RAPP (Release Aging People in Prison), which is addressing this.
Finally, but most importantly, is higher education in prison. Governor Cuomo came out in support of bringing higher education back into prisons, publicly financing it, but quickly backtracked when there was push-back from Republicans. Three such politicians, Republican Congressmen, Chris Collins of the 27th Congressional District, Tom Reed of the 23rd Congressional District, and Chris Gibson of the 19th Congressional District, opposing such, said we should support higher education for “kids before cons” and introduced the “Kids Before Cons Act,” which would ban states from using federal monies to fund college education for people in prison. Despite the evidence that people in prison who availed themselves of higher education have dramatically lower recidivism rates than those who do not, certain politicians, those whose constituents directly benefit by mass incarceration and by extension high recidivism rates, seem to want to continue to pretend that being “tough on crime” trumps being “smart on crime.” Note that these three Congressmen preside over 29 counties, with Collins and Reed sharing one, Ontario County, that are the home of 28 prisons. Further, note that only 14 of these 29 counties have prisons, with four in Ulster County alone, part of the 19th Congressional District. These politicians know the value of education. Collins holds an MBA, Reed holds a J.D., and Gibson holds a Ph.D. These are the same political districts, at least locally, that benefited from prison gerrymandering, that is, counting people from the five boroughs as residents of upstate counties for purposes of the Census, which made them eligible for entitlements disproportionate to their true numbers.
Governor Cuomo showed courage in closing prisons we no longer needed. (Note that there was opposition from the same politicians whose constituents benefit from prisons in their backyards.) He needs to muster that same courage and stand his ground on publicly financing higher education in prisons.