Allege Governor Unfairly Acting To Deny Parole;
Judge Permits Suit, Says Pataki Can't Defy State Law

By REUVEN BLAU

A group of inmates convicted of violent crimes has filed a class action lawsuit against the Pataki administration charging that the Governor has instituted an unofficial policy to automatically deny such prisoners parole based solely on the severity of their crimes.

GOVERNOR PATAKI: Thwarted by Legislature.

Southern District Judge Charles L. Brieant July 17 denied the state's motion to dismiss the case, which may affect thousands of inmates. He held a hearing July 28 to consider an immediate interlocutory appeal on his ruling to the U.S. Court of Appeals.

Steep Drop Since Cuomo

The complaint filed by 10 inmates cited statistics first reported in the New York Law Journal which showed that the release rate for A-1 violent felons had fallen from a high of 28 percent under former Governor Cuomo to 3 percent under Mr. Pataki in 2004-05.

Judge Brieant ruled that the "abrupt and steep decline" in the parole release of violent offenders showed "at least circumstantial evidence" that the 19-member Board of Parole appointed by the Governor is relying on his policy.

The inmates contend that the Parole Board has denied them fair and balanced hearings, violating their due process rights guaranteed by the 14th Amendment.

Mr. Pataki has successfully eliminated parole for violent offenders, but has been unable to convince the Legislature to completely abolish parole in favor of specific sentencing rules. "Without suggesting that he has done so," Judge Brieant said, "the Court can hold with confidence that the Governor would not be permitted to effect a 'policy' as an end run around the Legislature, in order to accomplish the goal of amending the statutory criteria to deny parole to a class of violent offenders."

State: No Such Policy

State officials have denied such a policy exists and filed the motion to dismiss the case, which resulted in Judge Brieant's decision to allow the case to move forward.

The ruling noted that parole decisions must be based on specific criteria such as the seriousness of the offense, the type and length of sentence, and the pattern of the crime. Under New York State Executive Law, the Board must also consider the inmate's institutional record including program goals and accomplishments, academic achievements, therapy and interpersonal relationships with staff.

"The violent nature of the offense may obviously be considered," Mr. Brieant's decision later noted, "but may not serve to make a denial a foregone conclusion, in contravention of the statutorily-prescribed process of consideration."

The Law Journal noted that Judge Brieant also has a similar case on his docket, Frederick v. Pataki, concerning an inmate who had his parole release revoked just as he was preparing to leave prison. Gregory Frederick, who was convicted of murdering one woman and attempted to slay another, was initially granted leave by Parole Commissioners Vernon C. Manley and Daizzee D. Bouey.

'Poster Child for Parole'

They noted that he immediately took responsibility for his crime, had a spotless record in prison, and received endorsements from many prison officials including the Superintendent of Ossining, who essentially called him the "poster child" for parole.

Based on the Parole Board's decision, Mr. Frederick gave away his belongings and his job in prison. But the board members were the same commissioners who voted for the release of Kathy Boudin, a former member of the radical group the Weather Underground who was convicted for her role in a botched armed robbery in 1981 in which three men were killed. Mr. Pataki publicly denounced her release in August 2003. According to court documents, Parole Board member Robert Dennison met with relatives of one of the Mr. Frederick's victims, who agreed that he should "die in jail" after being asked about the issue. A parole rescission hearing was then held based on that relative opposing release.

Reversed by New Board

The other two commissioners on the original panel, Ms. Bouey and Mr. Manley, who were involved in the Boudin decision, were suspended and Mr. Dennison and the new Board members voted to deny parole. Mr. Dennison since then has been promoted to chairman of the commissions and Mr. Pataki has replaced Ms. Bouey and Mr. Manley.

Mr. Frederick's complaint charges that the board's decision failed to properly review the mandated criteria and was arbitrary and capricious. The board's alleged policy, the suit contended, violated his due process rights and "forwards a political agenda."