One crime, two defendants, and parole decisions reaching opposite conclusions. The New Yorker digs into the politics and emotions roiling the aftermath of a double murder that happened in very different times.
Can “the context of history” soften judgments about a crime as heinous as the politically motivated murder of two police officers? The New Yorker explores that question in a detailed look at a case in which New York parole officials released one man, but then in nearly identical circumstances denied release to his co-defendant after the first decision sparked political backlash.
The case concerns two former members of the Black Liberation Army, a violent offshoot of the Black Panther Party, sentenced to 25-years-to-life for gunning down two New York City police officers in 1971. Herman Bell was paroled last year after expressing remorse and renouncing the radical politics he embraced in his youth. After the victims’ families, police union officials, and Gov. Andrew Cuomo denounced that decision, the parole board turned down Bell’s co-defendant, Jalil Abdul Muntaqim, nee Anthony Bottom, for release. Muntqim, who sought parole for the 11th time and has served more than 47 years already, dropped his longstanding denial of guilt and expressed remorse for the crime. But he refused to renounce his long-held sympathy for the BLA’s ideology of “noble resistance.” Further complicating the calculus: the son of one of the black police officer who died (the other was white) has argued for years that it is time for reconciliation over the “rampant racism” and police violence that inspired the BLA’s militancy.
As initiatives like the REFORM Alliance surge forward, it is important that they take an elemental, rather than incremental, approach to reforming probation and parole. Activists should ask how much, if at all, we need to employ government workers to watch those who have broken the law, writes a former New York probation commissioner.
A man nine years out of a New York prison proposes marriage to his girlfriend who also has a criminal record. Because it is against the rules to associate with someone with a prior record, his parole is revoked and he is returned to prison for a year─after which he marries the same person, this time with his parole officer’s permission.
A Texas woman is sentenced to five years in prison for attempting to vote while on felony probation. She cast a provisional ballot that was not counted and claims that she did not know she was prohibited from voting while under supervision.
More than 10 years after he had been sentenced to probation as a teenager, an award-winning Philadelphia hip-hop artist is imprisoned for two to four years for a technical violation for a traffic infraction and breaking up an altercation in an airport. Both charges against him were ultimately dismissed.
The above three cases represent the broad range of behavior─some of it barely illegal, some illegal only for those under supervision, some not illegal at all─for which a person under probation or parole can be deprived of their liberty.
Although “mass supervision” on probation or parole has not yet garnered the attention of “mass incarceration,” its impact is no small matter.
There are 4.5 million people under community supervision in America, twice as many as are incarcerated, a figure that amounts to more than the population in half of all U.S. states. About four in ten people entering America’s prisons and jails each year are under supervision. Many of those are incarcerated, not for committing new crimes, but for breaking a wide array of supervision rules.
Community corrections has been slowly gaining attention commensurate with its size and contribution to prison growth.
From 2013 to 2016, the Harvard Kennedy School convened 28 community corrections officials, researchers, prosecutors, advocates and formerly incarcerated people into an Executive Session on Community Corrections. The executive session published papers and convened public forums arguing for sweeping reforms, including shrinking the number of people under supervision and reducing revocations to prison.
In August 2017, every major association representing community corrections endorsed a Statement on the Future of Community Corrections, along with 35 prominent probation and parole administrators and 45 leading prosecutors. The statement asserted that, “community corrections has become a significant contributor to mass incarceration,” recommending that “that the number of people on probation and parole supervision in America be significantly reduced.”
A few months later, Meek Mill, the Philadelphia hip-hop artist profiled above, was returned to prison for a technical probation violation, spurring a national outcry and bringing the issue of community corrections to the attention of a broader audience. A nationwide effort to #FreeMeek sprung up and #Cut50, a bipartisan effort co-founded by Van Jones to reduce mass incarceration, launched a #StillNotFree Campaign to extend the conversation beyond Mill’s case.
The Columbia Justice Lab began publishing a series of papers on the impact of probation and parole nationally and in selected states coinciding with this explosion of interest in probation and parole reform. Too Big to Succeed – a national look at probation and parole authored by 20 leading community corrections administrators was followed by reports focusing on New York, Pennsylvania and Wisconsin, the latter of which we release collaboratively with JustLeadershipUSA.
Columbia’s New York report inspired the Less is More Act filed in January 2019 by Assemblymember Walter Mosley and Senator Brian Benjamin aimed at reducing the number of people violated on parole in New York State. New York returns the second highest number of people to prison for non-criminal, technical violations and people incarcerated for state parole violations are the only population that is increasing on Rikers Island.
This brings us to Wednesday’s launch of the REFORM Alliance, an organization inspired by Mill’s case, committed to advancing criminal justice reform.
Van Jones of #Cut50 (and a CNN host) has been tapped to lead the initiative, whose board is co-chaired by Mill and Philadelphia 76ers co-owner Michael Rubin, and includes musician-entrepreneur Shawn “Jay-Z” Carter, New England Patriots owner Robert Kraft and other titans of business, entertainment and sports.
As these various initiatives surge forward, it is important that they take an elemental, rather than incremental, approach to reforming probation and parole.
Probation and parole were established in the 1800s in America with the ambitious goal of helping people who had run afoul of the law turn their lives around. As mass incarceration exploded over the last four decades, community supervision mimicked it, even rebranding itself as “community corrections” in an attempt to stay apace with its big brother, the prison.
It partially succeeded, growing almost four-fold since 1980, but receiving only one out of ten corrections dollars.
To be sure, efforts to shrink supervision and make it less punitive are worthwhile. However, if the goal is to support people so they can flourish in their home communities, there needs to be a deeper examination of the best approaches to doing so.
New York City offers one example of how much probation can shrink substantially without producing undesirable consequences. From 1996 to 2017, the number of people on probation in New York City declined by three-quarters and technical violations plummeted to three percent. In 2014, 26 percent of people arrested for felonies in New York received unsupervised conditional or unconditional discharges while only four percent were sentenced to probation.
Did crime rise because of this massive reduction in community supervision in New York City? Did the jail population explode as probation, sometimes viewed as an alternative to incarceration, receded?
Quite the opposite, there was a 57 percent decrease in violent crime and a 55 percent decline in jail usage in New York City during that time.
And although the probation department’s budget rightly dropped, its per person expenditures doubled because of the sharp decline in its population, allowing me, as department head, to increase our contracts for community programs from two to 54 during my tenure there.
Former New York State Parole Director and New York City Probation Commissioner Martin Horn has proposed abolishing parole supervision and channeling the savings from reduced revocations to provide vouchers for persons on parole to buy their own services and supports.
Horn believes that parole is not particularly good at rehabilitating people on its caseload because parole is about taking risks and government is risk-averse. He reasons that individuals convicted of a new crime during the time they would have been on parole should be given moderate additional punishment, but should not be violated for non-criminal acts.
Give Returning Citizens More Responsibility
By putting programmatic decision-making into the hands of returning citizens, Horn also believes services will flow into the neighborhoods they live in.
Horn’s watershed proposal, and the experience of New York City, force us to ask basic questions about the proper role of government in helping people reacclimate to their communities.
High caseloads, scarce resources and a “trail ‘em, nail ‘em, and jail ‘em” attitude that replaced the Progressive-era’s rehabilitative ethic has rendered community supervision too big, overwhelmed and punitive to succeed.
There is not much evidence that revoking and imprisoning people contributes to public safety or rehabilitation, but we know it has a devastating and disproportionate toll on poor, young men of color. In contrast, recent research by Patrick Sharkey has found that increasing community programs helps improve community safety.
Instead of marginal fixes to the largest part of America’s system of punishment and control, this new wave of activism should ask how much, if at all, we need to employ government workers to watch those who have broken the law, versus how much we should be bolstering communities to help their neighbors turn their lives around.
Vincent Schiraldi is co-director of the Columbia University Justice Lab and Senior Research Scientist at the Columbia School of Social Work. He was formerly Commissioner of New York City Probation.
The hip-hop superstar may be the most famous American caught in a byzantine system of probation and parole that can send former incarcerees back to prison for “technical offenses.” With support from wealthy friends in the sports, finance and entertainment worlds, he’s now spearheading a movement to develop alternatives.
Meek Mill, hip hop artist-turned-justice crusader, is using his star power to fuel an ambitious $50 million campaign to shrink the number of individuals caught inside the U.S. probation and parole systems—a 4.7-million-strong group of which he may be the most famous member.
The campaign, called the REFORM Alliance, was launched Wednesday at John Jay College of Criminal Justice in New York with an event that brought together VIPs from the worlds of music, sport, media, politics and finance, all pledging their support for justice reform.
Meek Mill, Jay Z and Van Jones (L-R) arrive for the launch Wednesday of the REFORM Alliance. Photos by Vincent Papandrea
“I didn’t ask to be the face of reform,” Mill told the packed forum, in a reference to his year-long battle with Pennsylvania courts over a decision to revoke his parole and send him back to prison for a “technical” violation—which in turn provoked a nationwide protest that resulted in his release last April.
“I don’t want to be the face of anything. I just want to bridge gaps and try to bring people together and make the world a better place, especially for my culture and the environment where I grew up, where the system is targeted against people who look like me.”
Mill said he decided to channel the anger and frustration he felt into a movement that could help the millions of others who didn’t have the kind of celebrity profile that finally persuaded authorities to spring him from prison. (Officially he is still subject to the community supervision system until 2023. Released on bail, he had to receive permission from his probation officer to attend the launch.)
“I’m one of the lucky ones,” he said. “But there are people who don’t have a voice, and I’m here to speak for [them].”
Joining Mill on stage were some of the influential figures who had lobbied for his release and were now founding partners and board members of the REFORM Alliance: music mogul Jay-Z; Philadelphia 76ers co-owner Michael Rubin; New England Patriots owner Robert Kraft; Third Point LLC CEO and founder Daniel Loeb; Galaxy Digital CEO and founder Michael E. Novogratz; and Brooklyn Nets co-owner Clara Wu Tsai.
The eighth board member, Robert F. Smith, CEO & Founder of Vista Equity Partners, was unable to attend.
The new alliance did not offer any detailed plan for how it would use the $50 million in private capital supporting the initiative, but the newly appointed CEO of the group, CNN’s Van Jones, said it was intended to promote activities already underway by “grassroots” groups to develop alternatives to the community supervision system—with an early focus on New York and Pennsylvania.
“We are here to add capacity, to amplify the voices, to lift up the people who have been screaming for so long, with so little attention,” said Jones, who has co-founded numerous advocacy organizations dedicated to justice reform, including #Cut50, the Ella Baker Center for Human Rights, ColorOfChange.org, and the Dream Corps.
Unveiling the group’s catchphrase, “Fight Different,” Jones said the new organization should be seen as part of the continuing efforts across the country to develop bipartisan support for fixing the justice system.
“We are not here to reinvent the wheel,” added Jones, whose lobbying for successful passage of the watershed federal criminal justice reform bill, the First Step Act, earned him a spot last month behind President Donald Trump at the White House signing ceremony.
“We are here to accelerate the wheel that has already been built by grassroots organizations.”
The well-funded REFORM Alliance adds more heft to the increasing trend towards private investment of justice reform initiatives in a climate of reduced federal funding, and the participation of Mill and Jay Z also accelerates the involvement of entertainment and sports celebrities, ranging from John Legend to football star Colin Kaepernick, in controversial social justice issues such as police bias.
“I think attention is being brought to this [probation] issue because of his celebrity,” said Jay Z in a reference to Mill, adding that he and others hoped they could now use the celebrity attention to make a difference.
They already proved they could get the attention of politicians.
Sitting in the front rows of the audience was a gallery of political heavyweights, including Pennsylvania Gov. Tom Wolf; Cook County (Ill.) State’s Attorney Kimberly Foxx; Brooklyn (N.Y.) District Attorney Eric Gonzalez, and Pennsylvania Attorney General Josh Shapiro.
Topeka K. Sam. Photo courtesy New York Foundation
But arguably, given REFORM’s mission to serve those most adversely affected by the criminal justice system, the event’s most important attendees were not part of any blue-ribbon guest list.
They were a group of young people and grassroots activists who joined Topeka Sam, founder and Executive Director of the Ladies of Hope Ministries in Brooklyn, N.Y., on stage as she delivered her own take on the need for reform.
“So often we only speak about the 2.2 million people who are currently incarcerated in our prisons and jails in our nation,” she said. “We don’t speak about the 4.7 million people who are incarcerated in our communities through probation and parole.”
She continued: “Why is this number so high? Because people are being sentenced to lengthy terms of post-incarceration and probation, and are then being subjected to arbitrary harassment, which leads to violations, then prison, then parole, then probation, then prison again.
“(It’s) an ongoing cycle that [never] ends. And it ends today.”
The Justice System’s “Revolving Door”
Meek Mill’s case is an example of what Jones called the “revolving door” of the justice system that spins millions of Americans in and out of prison and the courts, as a result of a system of byzantine rules that govern their lives for years after their release from incarceration.
Jay Z. Photo by Vincent Papandrea
Mill was arrested for violating the terms of parole granted a decade earlier after serving eight months on gun and drug charges. His offenses: “popping a wheelie” on a dirt bike (a traffic offense), and his alleged involvement in an airport fight. On November 2017, a Pennsylvania judge sentenced him to two-four years in state prison despite recommendations from his probation officer and the District Attorney’s office that he face no sentence.
Reform advocates say such “technical violations”—like arriving late to a meeting with a parole officer or failing to inform him in advance of travel—regularly send more than two-thirds of those under community supervision back to prison in a system that they charge is especially weighted against people of color.
“We are going to dismantle this revolving door,” pledged Jones. “We are going to put our love against the hate that built this system.”
Roman Gressier is a TCR news intern. Readers’ comments are welcome.
Today’s community supervision systems damage the lives of the formerly incarcerated and are a poor use of taxpayers’ dollars, say two policy researchers. A bill currently being considered by the Pennsylvania legislature is a promising effort to change course.
Probation and parole were envisioned to help reduce the prison population and provide some structure and aid to those re-entering society. However, these systems have metastasized into a monstrous drain on state resources, even as they have damaged the lives of the formerly incarcerated.
By reforming the system of supervision, the criminal justice system can accomplish its goals of seeking justice for victims, while rehabilitating those who have become involved in crime.
Probation and parole serve similar but distinct functions. In both cases, the individual is under state supervision in lieu of detention and must adhere to certain conditions. Yet while probation allows a defendant to be released for a certain length of time in lieu of incarceration, parole involves the release of a prisoner before his or her sentence is completed.
Despite their shared goal of keeping people out of prisons, both systems are creating an additional layer of state-sanctioned control and surveillance, as well as exacerbating rather than inhibiting the cycle of crime in a community.
In Pennsylvania alone, more than a quarter of a million people are supervised by the Board of Parole and Probation.
Indeed, a report by the Columbia Justice Lab listed Pennsylvania as having the third-highest supervision rate in the country, noting that “in Pennsylvania, one out of every 34 adults is under community supervision, a rate 36 percent higher than the national average.”
Given the number of people under supervision, those employed as probation and parole officers have massive caseloads, which decreases the effectiveness of supervision.
*In Pennsylvania, each county probation officer actively supervises 113 people at any given time.
Larger caseloads can increase recidivism rates. In fact, the Journal of Crime and Justice studied how larger caseloads can worsen probation outcomes and found that a larger caseload increased the rate of recidivism by roughly 30 percent.
Aside from these overwhelming caseloads, the extended length of probation and parole does not increase public safety. The risk of an inmate reoffending once released on supervision decreases after the first year. The National Institute of Justice has studied this phenomenon and found that of those prisoners who were re-arrested, more than half — 57 percent — were arrested before the conclusion of the first year.
And in New York, those released early from probation were less likely to be arrested for a new felony in their first unsupervised year than those who were on probation for their full term.
For individuals on probation or parole, it can be difficult to comply with the terms for long periods of time, and violating these terms can result in re-arrest. Generally, a few terms are present in any type of supervision — such as securing or maintaining employment and drug abstinence — but special conditions from a judge can be added to individual cases.
And at times, these conditions can give far too much leeway to a judge’s interpretation of what counts as a violation.
For example, in New Jersey, one judge ordered that probationers “not enter disreputable places or associate with disreputable people.” One client under said condition was arrested in a bar for simply being in that bar and having a drink.
In addition to any criminal fines or court costs, a person on supervision must pay a monthly supervision fee. Failure to pay supervision fees may be viewed as a probation or parole violation, which could result in the court revoking an individual’s parole or probation and imposing a predetermined prison sentence on that individual.
For those who have not committed any infraction other than failing to comply with parole or probation conditions, jail time is all too often the result.
Pennsylvania State Sen. Anthony Williams
As Pennsylvania State Sen Anthony Williams (D) has said, “Approximately one-third of all beds in state prisons are occupied by people who have violated the conditions of their probation. These are often individuals who pose no real danger to society.”
In an effort to reduce this overwhelming statistic, as well as the other issues that create barriers to effective parole and probation, Sen. Williams introduced a Senate Bill 1067 earlier this year.
The bill — now awaiting a hearing in the state Senate Judiciary Committee — aims to limit the length of probation. Additionally, the legislation would limit a judge’s ability to jail probationers for technical violations that do not threaten public safety and would incentivize good behavior by allowing judges to reduce probation time.
To combat supervision officers’ burdensome caseload and decrease the negative impact of excessive supervision on individuals in the justice system, exploring solutions — like those proposed in SB 1067 — can lead to reforms that ultimately produce positive strides toward greater public safety.
Jesse Kelley is a Criminal Justice policy analyst and Arthur Rizer is Director of Criminal Justice and Civil Liberties Policy at R Street.
Prosecutors often show up at parole hearings to influence decisions on whether to release individuals they have helped convict. But a Boston College law professor says justice is better served when they “stay home and keep quiet.”
Prosecutors should “stay home and keep quiet” when individuals they have helped convict appear at parole hearings, according to a research paper published in the Ohio State Journal of Criminal Law.
Noting that many states already prohibit prosecutors from testifying in person at discretionary parole hearings—although they can submit written statements—Boston College Law School Professor R. Michael Cassidy argues that similar practices should be extended to all states.
“I recognize that this is an uphill battle, given the political clout prosecutors wield before state legislatures, and the many other urgent reforms needed in our criminal justice system,” Cassidy wrote in a paper for the Boston College Law School Legal Studies Research Paper Series, based on remarks presented at a symposium.
But he said some degree of “prosecutorial restraint” would be welcome to counteract the “undue influence” prosecutors now have in determinations of whether to parole prisoners, particularly those convicted of serious crimes like murder.
Such influence undermines the purpose of Supreme Court rulings that paved the way for individuals sentenced to life without parole for crimes committed when they were juveniles to seek release from prison.
As an example, he cited a stiff warning from a prosecutor that a Massachusetts inmate who was granted a parole hearing after spending over 40 years behind bars for the murder of his parents and sister “will kill again” —a warning that apparently convinced parole board members to deny release.
This was an example “of a prosecutor offering a prediction of future behavior that as a professional matter he is simply unqualified to make,” Cassidy wrote.
Prosecutors should be zealous advocates on behalf of the state during a trial, but continuing their adversarial role once an individual has been sentenced is inimical to the goal of serving justice, the paper argued.
Once a defendant has been convicted and sentenced, the prosecutor should act as a “minister of justice,” providing only factual and legal assistance to parole boards, wrote Cassidy.
Some 38 states now provide some form of discretionary parole for adult prisoners.
Prosecutors are entitled to give input in some fashion to the parole board in those hearings, particularly if they possess “highly relevant, post-conviction information unavailable from documentary materials or the testimony of victims,” Cassidy wrote.
But if they do not possess that information, “I urge prosecutors to stay home and keep quiet,” he continued.
Once a case closes and an individual is sentenced, Cassidy argued, prosecutors should not act as advocates in the administrative setting of a parole hearing, and put their “thumbs on the scale” of parole decisions.
Citing the work of Pace University Prof. Bennett L. Gershman on prosecutorial ethics, Cassidy said prosecutors have the power and discretion to “threaten, intimidate and bully other actors in the criminal justice,” including “defendants, witnesses, attorneys, and even judges.”
“Parole board members are no exception,” he wrote. “Since most chief state prosecutors in the United States are elected, they have political constituencies of their own to bolster their influence.”
Ideally, Cassidy believes, prosecutors should not be allowed to testify at a parole hearing and should only be able to submit written comments in rare circumstances in which he or she has information otherwise unavailable to the parole board.
He observed that the Supreme Court has recognized that a parole decision is meant to be a “discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.’
Cassidy described this as a risk assessment, arguing prosecutorial testimony can be “unhelpful” at that stage, particularly when information is readily available elsewhere to assist in making such an assessment.
For example, a prosecutor may have information on a defendant’s feelings of remorse or willingness to accept responsibility, but this information also would be available through other means, such as post-arrest statements or trial testimony.
Cassidy noted that 14 states now allow the prosecutor to submit written materials, but not to testify personally. Many states have already begun enacting further limits on prosecutorial engagement in parole proceedings. Texas and Wyoming, for instance, allow written testimony from the prosecutor only if requested by the parole board.
“Requiring the prosecutor to seek permission to intervene is a step in the right direction that could act as a prophylactic against reflexive prosecutorial opposition at release hearings,” Cassidy wrote.
“It will require the prosecutor to think carefully about what unique contribution she can make to a parole proceeding that is consistent with her obligation as a minister of justice.”
The size of the U.S. adult population under community supervision—about 4.5 million people—threatens to surpass mass incarceration as the nation’s biggest criminal justice challenge, according to a nationwide review by the Pew Public Safety Performance Project.
The growing number of Americans on probation and parole threatens to surpass mass incarceration as the nation’s biggest criminal justice challenge, according to a comprehensive nationwide review.
About 4.5 million Americans—one in every 55 adults—were in some form of community supervision in 2016, the latest year for which comprehensive statistics were available, according to a briefing paper summing up research into the parole and probation system by the Pew Public Safety Performance Project.
That represents more than twice the number of Americans currently held in jails and prisons, said the review, which was co-sponsored by the Laura and John Arnold Foundation (LJAF).
“The sheer size of the population means that current failure rates [in probation and parole] contribute significantly to the nation’s volume of arrests, drug misuse and incarceration,” the study said.
Although the review found that the population on probation or parole has dropped in concert with crime rates since 2007 in 37 states, the overall national trend has continued to rise. Since 1980 the number of American adults under supervision has increased by 239 percent.
The briefing paper, with 11 separate charts documenting the community supervision landscape in the U.S., was released last month together with an announcement by the LJAF that it would “make major investments” supporting research into alternatives to the current community supervision system without endangering public safety.
The ratio of those in community supervision varies widely from state to state, from as low as one in 105 adults in Virginia to as high as one in 18 adults in Georgia, one of the charts shows.
The challenge of community supervision has been “largely overlooked” in the movement for justice reform, researchers said.
“Probation and parole failures contribute to exceptionally high incarceration populations, increased taxpayer burdens, and decreased public safety,” said Kelli Rhee, president and CEO of LJAF, in a separate statement accompanying the review.
“If we can reform these systems so they better position people for success—providing access to mental health and substance use disorder treatment, for example—we will make an enormous impact on the justice system and individual lives.”
The review noted that, in contrast to the prison population, most of those on community supervision had been sentenced for nonviolent crimes: about eight in every 10 probationers, and two-thirds of parolees.
“If individuals under supervision for drug crimes and those for property crimes each made up a city, they would make among the 10 largest cities in the U.S.,” according to one of the charts released in the study.
Although about half of those on probation and parole successfully complete their terms, failure for the remainder often means a return to prison, and a significant number find themselves again behind bars as a result of “technical violations” of their post-release terms, rather than for new crimes, the review noted.
Researchers also found that African Americans disproportionally comprise 30 percent of those on community supervision (they represent 13 percent of the U.S. adult population) and that 3.5 times as many men as women were on supervision—though the number of women on probation or parole has doubled to more than one million since 1990.
A key section of the study focused on states whose emphasis on treatment and post-release counseling, or on reducing sanctions for violations for probationers and parolees, had reduced supervised populations.
For example, after Louisiana established a 90-day cap on jail or prison terms for first-time technical violations, the length of incarcerations dropped by 281 days and new-crime revocations fell 22 percent.
But it noted that “many people under supervision who could benefit from treatment do not receive it because of strained budgets, limited options in the community or other factors.”
“Research has shown that it is possible to have less crime and less correctional control,” said Jake Horowitz, director of the Pew Public Safety Performance Project.
“Community supervision agencies across the country may need a nudge, but they are well positioned to implement reforms that will safely reduce incarceration and increase the number of people who are successful on supervision.”
Marijuana testing for individuals on probation and parole serves “little public safety purpose” and should be stopped—even in states where pot has still not been legalized, five former New York City probation commissioners said Tuesday in testimony to the New York State Assembly.
Marijuana testing for individuals on probation and parole serves “little public safety purpose” and should be stopped even in states where pot has still not been legalized, five former New York City probation commissioners said Tuesday.
The five former commissioners—Martin F. Horn, Michael Jacobson, James Payne, Raul Russi and Vincent N. Schiraldi—said research showed that revocations of parole as a result of failed marijuana tests were a major driver of high incarceration rates and disproportionately affected African-American and Hispanic individuals.
“What we want is that people under supervision lead law-abiding lives and meet their obligations as citizens,” the ex-commissioners said in a written statement presented to the New York State Assembly’s Standing Committees on Codes, Health, Governmental Operations, and Alcoholism and Drug Abuse.
“As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine.”
Former NYC Probation Chief Vincent Schiraldi
The statement, read by Schiraldi, called specifically for New York legislators to “codify” the ban on marijuana testing as New York prepares to draft a bill to legalize all forms of marijuana use, including recreational.
If the bill passes, New York would be the 10th state—and the second most populous state after California—to legalize recreational pot.
Marijuana for medical use is already legal in New York State.
The commissioners said the possibility of full marijuana legalization in New York only makes it more imperative to end a practice that has effectively undermined the state’s success in reducing prison populations.
Despite the closure of 13 New York prisons and a 39 per cent reduction in the inmate population between 1999 and 2017, prison admissions for parole violations increased by 21 percent between 2015 and 2016 alone, the commissioners said.
They noted that the vast majority of those sent back to prison were found guilty of technical violations, and in many cases, those violations were related to either failures in drug tests or absconding from probation and parole because of fear they would fail a drug test.
“Anecdotally, we know that our clients would skip appointments when they knew they couldn’t pass a pot test,” the statement said. “Thus fear of testing inhibits our staff’s ability to provide support to people under supervision for housing, employment, family support, medical care, or mental health care without adding public safety value.”
Below is an edited version of the written statement, presented by Vincent Schiraldi.
Today we hope to provide evidence about how those on probation and parole should be treated if marijuana is taxed, regulated and legally consumed. Our professional lives have helped us reach the conclusion that testing for marijuana as a blanket condition of supervision serves little public safety purpose, even absent legalization. If marijuana consumption ceases to be a criminal act, we urge you to codify protections for those under supervision to prevent needless incarceration for actions that would be legal for anyone else.
We begin with a quote from New York Federal Judge Jack Weinstein from July. Rather than revoking community supervision for marijuana use for an otherwise compliant defendant, Judge Weinstein decided to end his supervision, explaining that he would no longer revoke people for marijuana consumption, writing:
Like many federal trial judges, I have been terminating supervision for “violations” by individuals with long-term marijuana habits who are otherwise rehabilitated. No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.
We argue that the same reasoning Judge Weinstein used in Brooklyn Federal Court should apply to those on probation and parole in New York.
The Growth in Scope and Burden of Community Supervision
First, [here is some] background on the growth of probation and parole in the United States, and on the burden that conditions of community supervision can pose to those required to abide by them.
Both probation and parole were created in the 1800s as an up-front diversion from incarceration in the case of probation, or as a back-end reward for good behavior in the case of parole. Both have since mushroomed right alongside prisons and jails, suggesting that they have become add-ons, rather than alternatives to, incarceration.
The nature of community corrections has changed, as well. Like the entire criminal justice system, probation and parole have become more focused on punishment, deterrence, and surveillance, than rehabilitation. The number of rules that individuals under community supervision must abide by have ballooned.
This has led the leading probation and parole organizations and 35 leading probation officials to sign on to a Statement on the Future of Community Corrections stating “community corrections has become a significant contributor to mass incarceration… [and] we recommend that the number of people on probation and parole supervision in America be significantly reduced.”
Thus, community supervision has become not only a deprivation of liberty in its own right, but also a substantial contributor to mass incarceration. Setting conditions, which in many cases cannot be met, contributes to a revolving door in which individuals who cannot meet those obligations cycle back and forth between community supervision and incarceration without improving public safety.
Trends of Mass Incarceration and Mass Supervision in New York State
Turning to New York, over the past two decades, our state has been a leader in reducing incarceration and closing prisons, driven by a reduction in prison commitments from New York City. There was a 31 percent reduction in the number of people in New York’s prisons between 1999 and 2017, allowing us to close 13 prisons and save over $160 million annually.
However, while the prison and community supervision populations have been shrinking, the number of people incarcerated on parole violations in state prisons and in city and county jails has been growing. Between 2015 and 2016 alone, our prison admissions for parole violations increased by 21 percent .
Former NYC Probation Commissioner Michael Jacobson. photo by firstname.lastname@example.org
New Yorkers released on parole are five times more likely to return to incarceration not for new convictions, but for violating parole. Within three years of their release, more than half of those released from our state’s prisons in 2012 had been reincarcerated. Of those, an overwhelming 84 percent were reincarcerated for a technical violation, while only 16 percent had returned because of a new crime.
This also impacts the city’s jail. State and city leaders generally agree that Rikers Island should be closed, and all other pretrial and sentenced populations have declined by double-digits at Rikers over the past four years. During that time, only one population in the jail has increased, also by double digits: people held for state parole violations.
The Disconnect between Marijuana, Testing, Violations and Public Safety
So, probation and parole have become much larger than originally intended, with burdensome conditions that serve as tripwires to incarceration rather than as alternatives. In New York, parole revocations are still exerting upward pressure on incarceration especially for people of color.
Now, let’s look specifically at revocations for marijuana use.
In short, there is no compelling evidence to suggest that marijuana use threatens public safety. As NYPD Commissioner James O’Neill wrote in a New York Daily News op ed recently “[t]he NYPD sees zero value in arresting people for marijuana offenses when those arrests have no direct impact on public safety.”
Likewise, there is no public safety justification for routine testing for marijuana as a condition of probation or parole. What research does exist suggests that drug testing as a component of community supervision increases the likelihood of incarceration for violations, but does not reduce criminal behavior.
However, there is an established link between drug testing and absconding from probation or parole. This is confirmed by our experience as Commissioners – anecdotally, we know that our clients would skip appointments when they knew they couldn’t pass a pot test. Thus, fear of testing inhibits our staff’s ability to provide support to people under supervision for housing, employment, family support, medical care, or mental health care without adding public safety value.
Furthermore, as the New York State Health Department’s report on marijuana legalization indicates, studies of some states that have legalized medical or recreational marijuana use have seen reductions in both opioid deaths and opioid prescribing. Heroin use ameliorates some of the same pain as marijuana, but also disappears from the bloodstream more quickly.
Testing for marijuana thus creates a perverse incentive – the riskier drug, heroin, is the one less likely to be detected. Once marijuana use is legal, we should make sure that those under community supervision don’t feel compelled to make this risky gamble.
Apart from these pragmatic reasons to avoid testing for a legalized substance, there are also legitimate fairness and racial justice concerns at hand. African Americans and Latinos are arrested for marijuana at eight and five times the rate of white people in New York City despite equal marijuana usage rates.
Since African Americans are eight times more likely to be arrested for marijuana use, and twelve times more likely to be detained for a parole violation, their chances of a violation for marijuana are much greater than for a white person.
As the (New York City) Health Department’s report stated, “Subject matter experts noted one of the biggest drivers of racial disparities in criminalization and incarceration rates is marijuana, and the best way to address it is to legalize marijuana.”
For all of these reasons, we recommend that, once marijuana is taxed, regulated and legally consumed, prohibition of marijuana use should not be imposed as a condition of probation or parole except in rare and specific circumstances. It follows then that people on probation and parole shouldn’t be routinely tested for it. We recommend that you codify these protections, but we also encourage state and local parole and probation to implement them now, prior to legalization.
In limited cases, we suggest that prohibition of marijuana use might be added as a special condition. However, in the interest of due process and to limit potential abuse, that condition should only be added by a judge, if an adversarial hearing finds that marijuana was connected to an individual’s criminal behavior, and in which the defendant has had a right to be heard.
Former NYC Probation Commissioner Raul Russi
If a supervising officer suspects that a client’s marijuana use is hurting their ability to meet the other conditions of supervision, we suggest that, with supervisor approval, a single test for marijuana could be conducted. Data on testing for marijuana use, whether it be by supervisor approval or court order, should be reported to the Department of Criminal Justice Services so it can be monitored by this body and state officials.
In either of these special circumstances, we feel strongly that the outcome of testing for marijuana should never be used as the basis to revoke a person’s probation or parole. Instead, a positive test can be used for intervention, such as targeted treatment to aid successful completion. If these interventions fail, then only other problematic behavior, not marijuana use, should be the basis for revocation.
What we want is that people under supervision lead law abiding lives and meet their obligations as citizens. As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine. This is similar to the practice in Oregon and Washington, where marijuana is legally consumed.
This has been done successfully in New York City.
When I was Probation Commissioner, we administratively stopped testing for marijuana. Revocations fell by 45 percent, our relationships between staff and clients improved, and only 4 percent of our clients were re-convicted for a felony in the year following their completion of probation.
If that’s already possible, why not leave it to the discretion of community corrections administrators?
Well, (former) Commissioner Horn was my immediate predecessor, and had also ceased testing for marijuana, experiencing the biggest drop in probationer arrests in the state. Yet, in just the few months that separated us, testing for marijuana crept back into the daily practice of the department. Protections of this sort need to be codified so they’re not left to the vicissitudes of changing bureaucracies.
There is little evidence that blanket policies of testing for marijuana serve any public safety purpose. [These policies] can actually work against a department’s efforts to rehabilitate its clients, and threaten to exacerbate already-stark racial disparities in our criminal justice system.
As Judge Weinstein wrote, “Many people from all walks of life now use marijuana without fear of adverse legal consequences…[But the criminal-justice system] can trap some defendants, particularly substance abusers, in a cycle where they oscillate between supervised release and prison.”
We urge you to codify protections against routine testing for marijuana and to prohibit revocations to incarceration for marijuana use. These protections do not endanger public safety, but do serve the liberty and rehabilitative interests of the individuals on probation and parole. Revocations for marijuana use made little sense before, and will make no sense once marijuana use is legal for the adult population.
The five ex-commissioners who signed the Oct. 16 statement, and their current positions, are:
Martin F. Horn, Distinguished Lecturer in Corrections at the John Jay College of Criminal Justice, City University of New York; former Commissioner the New York City Departments of Correction and Probation; former executive director of the New York State Division of Parole; and former Pennsylvania Secretary of Corrections.
Michael Jacobson, Director, Institute for State and Local Government, City University of New York (CUNY), Professor, Sociology Department CUNY Graduate Center; and former Commissioner of New York City Departments of Correction and Probation.
James Payne, criminal/juvenile justice consultant; former Commissioner of New York City Probation; former Manhattan Assistant District Attorney; and former Chief of the Juvenile Division of New York City Corporation Counsel.
Raul Russi, Chief Executive Officer, Acacia Network; former Commissioner of New York City Probation; former chairman of the New State Parole Board; and former Chief Executive Officer of the New York State Division of Parole.
Vincent N. Schiraldi, Co-Director, Columbia University Justice Lab; Senior Research Scientist, Columbia School of Social Work; former Commissioner, New York City Department of Probation; former Senior Advisor, New York City Mayor’s Office of Criminal Justice; former Director, Washington, DC’s Department of Youth Rehabilitation Services.
Wanda Barzee, 72, will be released next week after spending more than 15 years in prison for helping to kidnap Elizabeth Smart. Smart was “surprised” and “disappointed” by the decision.
Wanda Barzee, a key player in one of Utah’s most notorious crimes, will get out of prison next Wednesday in an unexpected move by Utah’s Board of Pardons, reports the Salt Lake Tribune. Barzee has spent more than 15 years behind bars for helping to kidnap Elizabeth Smart. The board initially denied Barzee an early release date in July, declining to include her eight years in federal prison as time served on state charges and setting a new hearing for 2023. Smart said Tuesday’s reversal left her “surprised” and “disappointed.” The board decided to count the federal prison time to reduce Barzee’s sentence. She admitted to helping her husband, Brian David Mitchell, kidnap then-14-year-old Smart from her bedroom at knifepoint in 2002.
Barzee testified that Mitchell told her God wanted them to kidnap seven young girls to become plural wives as a way of restoring the true church to Earth during an end-of-times battle with the Antichrist. Mitchell raped Smart almost daily during nine months of captivity, which included a journey to California and back to Utah. Smart was rescued — and Mitchell and Barzee arrested — after the three were spotted on in 2003. “It is incomprehensible how someone who has not cooperated with her mental health evaluations or risk assessments and someone who did not show up to her own parole hearing can be released into our community,” Smart said. Barzee, 72, did not attend her June parole hearing. She has refused to meet with a psychiatrist at the Utah State Prison, a mandatory requirement for parole after Barzee pleaded guilty but mentally ill to the attempted kidnapping charge.
Two criminal justice advocacy groups say that New York Gov. Andrew Cuomo has failed to fill positions on the state parole board and that some members are not giving inmates a fair shake.
The New York State Board of Parole is woefully understaffed, and two members who have deep political and police ties routinely reject prisoners without giving them a chance, charges a scathing report by criminal justice activists, the New York Daily News reports. Commissioner Walter Smith, a politically connected board member since 1996, consistently denies parole to prisoners convicted of violent crimes and is prone to losing his temper and mocking inmates seeking to convince him they’ve turned their lives around, say the organizations Release Aging People in Prison and the Parole Preparation Project. Commissioner Marc Coppola attends hearings unprepared, often mixes up case files and fails to consider required aspects of a prisoner’s life behind bars, the report says. “The governor can and should dismiss these commissioners immediately and replace them with qualified candidates who better reflect the identities and experiences of people in prison,” the groups maintain.
Prisoner advocates and police unions are urging Gov. Andrew Cuomo to overhaul the board. Critics want the state to add staff as well as depoliticize how members are selected. The board is staffed with only 12 of 19 commissioners, who must handle an average of 12,000 cases each year. The board has not been fully staffed since Cuomo took office, said Dave George of the aging-inmate activist group. The state budget allocated money for 16 parole commissioners this fiscal year. A lack of staff has made it impossible for the board to review cases thoroughly, prisoner advocates say. In May, the board interviewed 70 prisoners in Fishkill Correctional Facility in one week. “Such severe understaffing has led to myriad procedural problems, overworked commissioners, higher caseloads, shorter parole interviews, and less time for individualized evaluations of parole applicant files,” the report says. Patrick Bailey, a parole board spokesman, said the report contains “false accusations.”
Houston police say Jose Rodriguez, who has been charged with capital murder, cut off his parole ankle monitor on July 5, but a warrant was not issued for his arrest for several days.
As investigators build their case against a man they have accused of cutting off his ankle monitor and killing three people, law officials say the tragedy raises questions about the oversight and tracking of parole violators in Houston, the Houston Chronicle reports. This week, police arrested Jose Gilberto Rodriguez, 46, who has been charged with two counts of capital murder. Police say he cut off his ankle monitor and went into hiding from parole officers. Documents from the Texas Department of Criminal Justice give details about when officials learned Rodriguez had absconded from supervision and raise troubling questions about the effectiveness of the system used to monitor parolees convicted of violent offenses.
The Houston police chief and the Harris County sheriff both pressed to improve the electronic tracking system by cutting the time it takes to notify local authorities when a parolee tampers with their electronic monitoring system or otherwise violates parole conditions. The triple slaying was the second time this month a dangerous parolee fitted with an ankle monitor violated the terms of his release but was not arrested for several days. Some 4,954 parolees across Texas are tracked by GPS or electronic monitoring. Rodriguez, 46, was paroled from state prison on Sept. 29, 2017. He was required to wear an ankle monitor. He registered as a sex offender, submitted to a polygraph examination and had reported to his parole officer. He cut off his ankle monitor on July 5, but a warrant for his arrest would not come for several days. Rodriguez was one of 84,000 parolees living in Texas. At the time of Rodriguez’ alleged crime spree, the state listed 2,500 parolees with active warrants for their arrest. Five hundred of them were classified as offenders with a history of violence.