Special Edition 2006

Published by Prisoners’ Legal Services of New York

Dismantling Parole:
A Special Edition of “Pro Se”
It is no secret to New York prison inmates that
the likelihood of parole has declined dramatically
during the twelve years of the Pataki administration,
particularly for violent felons. In 1991-92, the
chances that a violent felon, not including an A-I
felon, would be released by any given parole board
were 51%. By 2005, that figure had fallen to 16%.
Thus, whereas in the pre-Pataki years, good
behavior, a willing performance of program
requirements, and a demonstrable desire to avoid
further criminality virtually guaranteed parole
release at or reasonably close to a minimum term,
such achievements today will almost surely result in
frustration. Inmates generally, and violent felons in
particular, are routinely “hit” and hit again by the
Board, regardless of their prison accomplishments,
based solely on the one thing they can never
change: the “seriousness of the underlying offense.”
The courts, with few exceptions, have been
unsympathetic. The Appellate Divisions routinely
affirm the decisions of the Parole Board, even those
that deny parole to the most deserving candidates.
They hold that the Board has wide discretion so
long as a review of the record shows that it has
given some consideration to the factors listed in
Executive Law § 259-i. Even where the factors are
in the inmate’s favor, so long as the Board has at
least considered them, its decision must be

sustained unless it shows “irrationality bordering on
impropriety.”
Pro Se has received many letters from inmates
asking us to write more about parole in the Pataki
years. While we write regularly about relevant
parole cases when they come up, we have not, to
date, published a feature story
article continued on page 2…

Also Inside…
Who Gets Parole? . . . . . . . . . . . . . page 2
Court Decisions Give Board
Broad Discretion . . . . . . . . . . . . . page 7
Meet the Parole Board . . . . . . . . . page 9
Given Minimum, Inmate
“Re-Sentenced” by Board . . . . . . page 14

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This project is supported in part by grants from the New York State Division of Criminal Justice Services, the New York State
Bar Foundation, and the Tompkins County Bar Association. Points of view in this document are those of the author and do
not represent the official position or policies of the grantors.

Page 2

Pro Se Special Edition 2006

…article continued from page 1

about the decline of parole in New York.
January 31, 2006 The New York Law Journal beat
us to the punch, publishing a lengthy review of the
legal and human consequences of the Pataki

administration’s parole policies. We reprint that
article in this special edition of Pro Se, with
permission from The New York Law Journal (c)
2006 ALM Properties, Inc. (All rights reserved.)

“DISMANTLING PAROLE”
by John Caher
Thousands of New York prison inmates
sentenced at a time when parole release was a
realistic prospect are now lingering behind bars as
the Pataki Administration has dramatically
restricted parole for violent felons, arguably going
beyond anything authorized by the Legislature, a
probe by the New York Law Journal reveals.
Through an administrative process subject to
scant judicial review, Governor Pataki’s appointees
to the New York State Board of Parole have used
their broad discretion to implement a gubernatorial
policy to keep violent felons behind bars as long as
possible, notwithstanding the recommendations of
sentencing judges guided by a different and more
lenient legal, political and legislative framework.
Parole release rates have declined radically
since Mr. Pataki, a Republican elected initially on a
tough-on-crime platform, became governor in 1995
and as the board members appointed by his
predecessor, Democrat Mario M. Cuomo, have all
been replaced.
The results are telling: In fiscal year 1992-93,
the state released 23 percent of prisoners eligible for
parole who had committed so-called A-1 felonies-murder, attempted murder, kidnapping, and arson.
By 2004-2005, that had plummeted to 3 percent,
just nine prisoners. At the same time, the release
rate for other violent criminals who appeared for
interviews before the parole board plummeted to 18
percent, or 337 inmates, from 51 percent.

Who Gets Parole
In a 2003 ruling, Acting Supreme Court Justice
Edward A. Sheridan of Albany observed that since
taking office, the governor has annually called for
the elimination of parole. The judge, citing the
sharp drop in parole releases since Mr. Pataki took
office, found an “undeniable inference that the
Board has 'gotten the message' and is implementing
executive policy.”
Critics of the administration's parole practices
say inmates convicted under prior regimes-especially inmates who plea bargained and had
reason to expect that they would be freed after
serving the lower end of an indeterminate sentence
– are getting a raw deal.
“It's fine, a legitimate political decision to do
things prospectively,” said Alfred A. O'Connor, an
attorney with the New York State Defenders
Association in Albany. “It's quite a different matter
when you are victimizing people who are in
[prison] under a completely different set of
circumstances, a set of assumptions about what
would happen.”
The story of Brian E. Jacques, who
plea-bargained for a term of 15 years to life, is
typical. When Mr. Jacques pleaded guilty to an
Albany County murder in 1983, he expected to be
released after 15, maybe 17, years. At the time, that
was a reasonable expectation. But Mr. Jacques had
the misfortune of coming up for parole when

Pro Se Special Edition 2006

government attitudes about early release had
changed.
Despite a good prison record and no prior
history of violent behavior, Mr. Jacques has been
denied parole four times since Mr. Pataki took
office and has now spent 23 years behind bars.
Mr. Jacques' fate is in the hands of the parole board.
He could be released after his next parole hearing in
August, or never, and the fact that the sentencing
judge gave him the minimum is of no consequence.
“I wholeheartedly believe they are following
Governor Pataki's agenda not to release violent
felons,” Mr. Jacques told the Law Journal. “I
believe his message to the parole board is, “Do not
let these people out,' and they are following that
standard.”
Several parole board members either declined to
be interviewed or did not return repeated telephone
calls. Scott E. Steinhardt, spokesman for the
Division of Parole, said in a statement that each of
the board's decisions “reflect a careful and
independent level of consideration.”
By law, parole is a possibility, not a guarantee
or reward for good behavior, and an inmate has no
legal expectation of securing parole release. See
article, page 7. Moreover, the parole board has
broad discretion in making its decisions. While the
board is required to take into consideration a
number of factors--such as the seriousness of the
crime and the inmate's rehabilitative effort--it can
place any weight on those factors and need not
explain itself. Current commissioners often give
more weight to the seriousness of inmates' crimes
than to claims of rehabilitation.
Chauncey G. Parker, the governor’s Director of
Criminal Justice and Commissioner of the Division
of Criminal Justice Services, which encompasses
the Division of Parole, does not deny that the parole
board shares the governor's philosophy and, to the
extent permitted by law, follows his agenda. He said
it is axiomatic that a panel appointed by a long-term
governor would reflect the philosophy of the
executive. But he sidestepped questions on whether
it is fair to impose today’s attitudes on inmates
sentenced during another era.

Page 3

“The governor's focus as a matter of public
safety is to make sure…that people convicted of
violent crimes serve the longest possible sentences,”
Mr. Parker said. “It is clear that the governor thinks
as a matter of public policy and public safety that a
more effective way to do this would be to have a
determinate sentencing structure and have the
judges make the decision, except for murder where
it would be life without parole or something like
that.”
Mr. Steinhardt, the Parole Division spokesman,
stressed that in the past decade, new crimes by
parolees have decreased and the number of parolees
returned on new felony convictions has dropped 48
percent.
Although exact numbers were not available, a
large portion of New York's 63,000 inmates were
sentenced to indeterminate, parole-eligible terms,
the 2004 New York State Statistical Yearbook
suggests. Mr. O'Connor said those convicts should
be judged for parole purposes under the rules and
protocols in effect when they were sentenced.
“It is one thing to have a determinate sentencing
system. It is another to be retroactively imposing
that,” Mr. O'Connor said. “Now, there is no
difference between a 15-year-to-life sentence and a
25-year-to life sentence.”
Since taking office, Mr. Pataki has sought to
redesign New York's sentencing structure to more
closely mirror the federal system. The federal
government abolished parole in 1984, substituting
for the parole system one in which inmates serve a
determinate sentence followed by a period of
supervised release. Mr. Pataki would follow the
federal government’s lead.
“What the governor is proposing is a clear,
transparent sentencing structure investing the
discretion in the court and not in the parole board,”
Mr. Parker said. “Under current law, what the judge
says is a factor, but ultimate discretion is vested in
the parole board. If the governor's proposal went
through, the judge's sentence would be the
sentence.”
But the Legislature has gone only half way,
eliminating parole for some offenses, maintaining it

Page 4

in others--and leaving the thousands of inmates
convicted under older laws at the mercy of the
current parole board.
The Sentencing Reform Act of 1995 abolished
parole for second felony offenders and Jenna's Law
in 1998 abolished parole for all violent offenders
and added a post-release supervision component. As
it now stands, only non-violent, non-drug offenders
receive an indeterminate sentence. All other felons
are sentenced, prospectively, to a determinate term.
As the result of changes in the law, the number
of violent inmates eligible for parole has plummeted
to 2,414 from 7,623 since 1992-93, a decline of 68.3
percent. But the number of eligible violent felons
released each year has declined more rapidly--by
88.4 percent. Overall, the state released only 38
percent of the violent and nonviolent inmates before
it last year, down from 62 percent in 1992-93.
“The parole board is acting as a second
sentencing court, imposing its own sentence in
place of the sentence imposed by the judge,” said
Robert N. Isseks, a criminal defense attorney in
Middletown. “That is particularly clear in those
cases where the judge imposed a sentence less than
the maximum [such as 15-years-to-life rather than
25-to-life]. Then, the parole board steps in and
imposes a sentence that is twice as much.”
Mr. Isseks recently filed a federal class action in
the Southern District accusing the Pataki
Administration of side-stepping the parole law in
order to advance its agenda. Nine named plaintiffs
who were sentenced to less-than-the-maximum for
second-degree murder, but have been repeatedly
denied parole, allege that the parole boards relied on
the seriousness of their offense while paying little
attention to other statutory criteria.
A convict serving, say 5 to 15 years, has to be
released eventually. But one serving a sentence
where the upper limit is life is guaranteed only a
parole hearing every other year after serving the
minimum. Almost 20 percent of the people in New
York prisons are serving a term where the top end
is life — the highest percentage in the nation and
nearly twice the national average.
Gerald T. Balone has served more than 30 years

Pro Se Special Edition 2006

on a 25-years-to-life sentence for three murders.
During his three decades in prison, Mr. Balone has
completed rehabilitation and vocational programs.
He says he does not know what more he can do to
obtain the parole release he believes was presumed
by his legislatively defined sentence.
“I am at a loss,” Mr. Balone said. “I don't know
what to do.”
Alfred Mancuso, a 72-year-old career felon,
received a 25-years-to-life sentence for murder in
1978. He has been denied parole eight times – every
two years for the last 16 years – even though he
claims to have a spotless prison record and
continues to maintain his innocence.
“The bottom line is, they are afraid of Governor
Pataki,” contended Mr. Mancuso, a prisoner at the
Collins Correctional Facility near Buffalo. “Every
time they grant someone parole, [Mr. Pataki] comes
out against it in the newspaper. I honestly believe
they are hitting me because they are afraid of the
repercussions.”
Mr. Mancuso and other prisoners and advocates
point repeatedly to the case of Kathy Boudin, a
1960s radical involved in the infamous 1982 Brinks
armored truck heist. Three people were killed, and
Ms. Boudin was convicted of felony murder.
After serving 22 years of a 20-years-to-life
term, Ms. Boudin, who had numerous individuals
and organizations lobbying for her release, was
paroled in 2003. Mr. Pataki promptly denounced the
decision and, within months, replaced longtime
Parole Board Chairman Brion Travis. There have
been no controversial parole releases since then.
“The lack of any established criteria and the
unlimited discretion of the parole board begs for
problems,” said advocate Amy James-Oliveras of
Wappinger's Falls, whose husband, George
Oliveras, served 27 years of a 25-years-to-life term
before he was paroled on a murder conviction.
Ms. James-Oliveras is active in the Coalition for
Parole Restoration, an organization comprised
largely of wives of parole-eligible prisoners whose
release has been blocked by the parole board.
“There is no accountability, and no real avenue
of judicial review,” she said.

Pro Se Special Edition 2006

Some trial judges have overturned or challenged
parole board determinations on the grounds that the
appointed panel is following executive policy rather
than the law. The Appellate Divisions have
consistently rejected those arguments, however, and
even if a prisoner convinces a court to order a new
hearing, his efforts may be for naught. By the time
an inmate is denied parole, files and loses an
administrative appeal, files and loses an Article 78
petition and appeals to an appellate panel, the whole
court issue is frequently moot, since the courts can
do nothing other than order a new parole hearing,
and the inmate gets a hearing automatically every
two years in any event.
Mr. Oliveras, for instance, was convicted of
murder and robbery in the Bronx in 1975. His
25-years-to-life sentence made him eligible for
parole in 2000. But at the time of his hearing, about
a third of his record on his rehabilitation was
missing. There was no record of his academic
achievements or his participation in anger
management courses.
He challenged his parole denial
administratively, but lost. He went to Supreme
Court and was denied again. He appealed to the
Appellate Division. When the appeal finally got to
court, Mr. Oliveras was four days from another
parole hearing. So the court dismissed his claim for
mootness.
At his next appearance--when Mr. Oliveras was
prepared to go to court over the missing records--he
was granted parole, so the issue of the lost records
was never adjudicated. He was one of 10 A-1
violent felons paroled in 2002, out of 242 eligible--a
release rate of about 4 percent.
“They [parole commissioners] are playing a role
they are not supposed to play,” Mr. Oliveras said.
“They are re-sentencing in effect. They are playing
a judicial role.”
Critics say that, after a few adverse court
rulings, the parole board now covers itself by
stating, in its denial, that it took into account the
statutory factors. But the critics suspect that the
board makes determinations based on the instant
offense alone.

Page 5

“There are cases where it is obvious [that denial
of parole] is based on the instant offense, and only
lip service is being applied to the statutory criteria,”
Mr. Isseks said.
Joy Pujas of Ulster County is also active in the
parole restoration movement. Her husband is doing
time for a murder 24 years ago. He was sentenced
to 20 years to life in New York City in 1982, came
up for parole in 2002 and has been denied twice
since then.
“If a judge can impose 25-to-life but instead
imposes [20]-to-life, that indicates the judge thinks
that under some circumstances [20] is sufficient,”
Ms. Pujas insisted. “But the parole board says it is
not.”
Ms. Pujas is urging legislation that would
change the way commissioners are appointed. At
least three lawmakers--Assemblyman Jeffrion L.
Aubry, D-Queens, and Senators Velmanette
Montgomery, D-Brooklyn, and Thomas K. Duane,
D-Manhattan--are sympathetic and have proposed
legislation or sponsored forums to discuss the issue.
So far, there has been little movement in either
house.
Political Considerations
“Clearly, there are political considerations in
these appointments,” said S. Earl Eichelberger, who
served as a parole commissioner between 1985 and
1999 as a Cuomo appointee.
Mr. Eichelberger, whose term extended four
years into the Pataki era, said there was a sense that
commissioners were expected to carry out the
general parole policies of both the Cuomo and
Pataki administrations.
However, Mr. Eichelberger said he is unaware
of a commissioner ever receiving direct orders from
the executive chamber during either administration.
Rather, he said, it was assumed that the board
should respect the criminal justice philosophy of the
sitting governor.
Retired Commissioner Henri C. Raffalli, who
served on the parole board from 1987 to 1998, said
the panel was influenced not by politics or

Page 6

politicians, but by changing social values.
“I never felt any pressure, not from Cuomo and
not from Pataki,” said Mr. Raffalli. “The social
pendulum kept swinging back and forth. The board
is very sensitive to the expressions of society, as
expressed in the newspapers. So we would try to
run along those lines.”
At one hearing shortly after Mr. Pataki came
into office, Mr. Raffalli told a prisoner up for parole
that “society says murder is a heinous crime” and
the voters had elected a governor who “doesn't say
we ought to put you in prison for 15 to life. He says
we ought to get rid of you completely and kill you,”
according to a transcript of the proceeding.
Mr. Raffalli, in an interview, said his point was
that prevailing attitudes had shifted fundamentally
since the prisoner was sentenced to a 15-year-to-life
term, and that those sentiments weighed heavily
against his release. The prisoner was denied parole.
Inmates and their families say they are losing
hope that parole decisions will be made based on
the objective criteria of the law as written.
“You want to believe in a system, a system
where there's righteousness, where people pay their
dues and that it is all about correcting and
rehabilitating and not only about punishment,” said
Ms. Pujas, who testified at Mr. Aubry’s hearing.
“We have come to the point where it is total
punishment. Financially, it is devastating.
Emotionally, it is crippling.”
Release of Radical Kathy Boudin On Third Try
Angered Governor
No parole board decision has received more
attention in the past decade than its release of
convicted murderer Kathy Boudin in 2003.
Ms. Boudin, a member of the radical Weather
Underground, was sentenced to 20-years-to-life for
her role in a 1981 armored-car holdup in Rockland
County in which a security guard and two police
officers were killed.
Ms. Boudin, a passenger in the getaway car, was
unarmed and had no direct role in the shootings. A
last minute addition to the scheme, she did not help

Pro Se Special Edition 2006

plan the robbery, in which the stolen money was
supposedly intended to further socialist causes.
In imposing the plea-bargained 20-years-to-life
term, the sentencing judge, Justice David S. Ritter,
said he could “see no reason in the world” why
Ms. Boudin would not be released after 20 years “if
the parole authorities are satisfied that's
appropriate.”
Over the course of 20 years spent primarily at
the Bedford Hills Correctional Facility, Ms. Boudin
was reportedly a model prisoner. She assisted AIDS
patients and incarcerated mothers and earned a
master's degree in education.
In 2001, the parole board denied Ms. Boudin’s
application.
In April 2003, Acting Supreme Court Justice
Louis C. Benza ordered the board to consider the
recommendations of the sentencing court. A second
panel ostensibly considered Justice Ritter's
recommendations, but again denied Ms. Boudin
parole in May 2003.
Finally, a third panel granted Ms. Boudin parole
in August 2003, sparking a debate that climaxed in
Governor Pataki's reassigning the parole board’s
longtime chairman Brion Travis to the state
Insurance Department. The transfer of Mr. Travis,
an expert in criminal justice with no experience in
insurance, was widely perceived as punishment.
“It is not a decision that should have been
made,” the governor said at the time regarding Ms.
Boudin’s parole. “It is not a decision that I would
have made.”
In a recent interview, the attorney who
represented Ms. Boudin, criminal-law specialist
Leonard Weinglass, called the decision to release
Ms. Boudin an aberration from the norm.
“I think that case is very unusual in that the
parole board did follow the standards that are
supposed to apply in parole situations,” Mr.
Weinglass said. “Unfortunately, that is not always
the practice.”
Mr. Weinglass said that he has received
numerous requests for representation from prisoners
since Ms. Boudin's release.
“[They] have been repeatedly denied parole

Pro Se Special Edition 2006

Page 7

despite their evident rehabilitation, always on the
basis of the so-called 'seriousness of the offense,'
which has become a parole-board mantra,”
Mr. Weinglass said.
Ms. Boudin, who declines press interviews, is
making the most of her parole, according to
Mr. Weinglass.
“She is pursuing her studies and doing full-time
work and research connected to AIDS,” he said.
And in September, Mr. Travis, the former chairman
of the parole board, was transferred to the
Department of Corrections, an agency much more
closely related to his expertise.

Regardless, a growing number of courts are
overturning parole determinations, often with harsh
reviews of the actions of the Board of Parole. Here
are some examples from the last two years.

Court Decisions Give Parole Board Wide
Discretion

Acting Supreme Court Justice Edward A.
Sheridan of Albany in Chan v. Travis,
(NYLJ, Feb. 27, 2003).

A large body of case law establishes that the
New York State Board of Parole has broad powers
and wide discretion. According to the courts:
•

Parole is a possibility, not a guarantee or reward
for good behavior, and an inmate has no
legitimate expectation of ever securing parole
release (Barna v. Travis, 239 F.3d 169 [2001]).

•

While the parole board is to take into
consideration a number of factors--such as the
seriousness of the crime and the inmate's
rehabilitative efforts--it can place any weight it
wants on those factors and need not explain
itself. It is permitted to emphasize the
seriousness of the offense (Matter of Little v.
Travis, 15 AD3d 698 [2005]) so long as it takes
into consideration the statutory factors
articulated in Executive Law §259-i (Matter of
Lue-Shing v. Pataki, 301 AD2d 827 [2003]).

•

Judges should not undermine the parole board's
broad discretion absent a showing of
"irrationality bordering on impropriety" (Matter
of Silmon v. Travis, 95 NY2d 470 [2000]
quoting Matter of Russo v. New York State
Board of Parole, 50 NY2d 69 [1980]).

Noting an inmate's positive institutional
adjustment or achievements in the written
decision is not tantamount to considering
them in a fair, reasoned and individualized
manner. Indeed, such cursory treatment
turns on its head the reformative or
rehabilitative principle underlying an
indeterminate sentence.

In Chan, Justice Sheridan implied that the
parole board was more intent on carrying out
executive policy than in following the law.
The case centered on a defendant who, as a
17-year-old member of a Chinese street gang, was
involved in a 1992 homicide. Dennie Chan pleaded
guilty to charges of first-degree manslaughter and
related counts. In denying the convict parole after
his initial appearance in 2001, the board took note
of his positive achievements and rehabilitative
efforts, but said the seriousness of his offense
warranted denial of parole.
After an unsuccessful administrative appeal,
Mr. Chan pursued an Article 78 petition that landed
before Justice Sheridan in early 2003. The judge
wrote an oft-cited decision in which he criticized
the parole board's "apparent disregard of the
rehabilitative component of the indeterminate
sentencing and parole statutes" and "failure to
address or to acknowledge, contrary to statute, the
favorable comments of the sentencing Judge
commending petitioner's sincere remorse, and
expressing the Judge's expectation that petitioner
would be released…at expiration of his minimum
sentence, to assume a productive and repentant
life."

Page 8

Justice Sheridan said that since taking office in
1995, Governor George E. Pataki has annually
called for an elimination of parole. Citing the sharp
drop in parole releases since Mr. Pataki took office,
the judge found an "undeniable inference that the
Board has 'gotten the message' and is implementing
executive policy."
"This State may be in transition to determinate
sentencing and the abolition of traditional parole for
all felons, but that may not be imposed by
administrative fiat on this inmate and the class of
inmates similarly situated," Justice Sheridan wrote.
"The Board may not ignore that…policy and its
obligation to this petitioner even if current law and
Executive policy have taken a different direction."
The Division of Parole appealed, but by the time
the case was before the Appellate Division, Third
Department, Mr. Chan had been released at his next,
statutorily-mandated parole hearing. The appeal was
dismissed for mootness with no review of Justice
Sheridan's findings (3 AD3d 820, [2004])
(Prisoners’ Legal Services represented the inmate
on appeal). Since then, the judge has overturned
several parole determinations, but the Third
Department has repeatedly reversed, stressing that
the courts must tread cautiously to avoid intruding
on the discretion of the Board of Parole.

Pro Se Special Edition 2006

with the deaths of a couple apparently beaten to
death with a hammer and an axe in the late 1970s.
After Mr. Cappiello was denied parole seven times,
Judge Wetzel ordered a new parole hearing and
required the Board of Parole to state, on the record,
that the members had actually read all of the
submitted documents.
Justice Wetzel went a step further in also
directing the convict, if the parole commissioners
failed to respond to the query, to read the contents
of his petition out loud to ensure that it was
included in the record.
"The Parole Board's failure to qualitatively
determine whether petitioner presented a current
danger to society, based on all of the relevant
statutory factors, was a clear abdication of its
statutory duty," Justice Wetzel wrote. The role of
the board, he said, "is not to resentence petitioner
according to the personal opinions of its members
as to the appropriate penalty for murder, but to
determine whether as of this moment given all of
the relevant statutory factors, he should be
released."
Following the decision and the immediate de
novo parole hearing it required, Mr. Cappiello was
released on May 4, 2005.
Threat to Society?

Study the Record
Apparently, it is [the parole board's] position
that it is not responsible for reading and
incorporating submissions as part of its
deliberative process.
Manhattan Supreme Court Justice William
A. Wetzel in Cappiello v. New York State
Board of Parole, 6 Misc.3d 1010A (2004).
Justice Wetzel found that the parole board had
denied the convict, John Cappiello, parole solely
because of the severity of his crimes, with no
consideration of his rehabilitation. Mr. Cappiello
had been convicted of felony murder in connection

"Does the Board honestly believe that…a
74-year-old man, half blind from cancer,
who has helped countless people, and
learned and taught principles of law to
many, truly is a continuing threat to
society?"
Manhattan Supreme Court Justice Alice
Schlesinger in Phillips v. Travis, 800
NYS2d 397 (2005).
The matter involved a rogue police detective
who, while shaking down a pimp in the late 1960s,
killed the pimp and a 19-year-old prostitute and
severely wounded a john. He was finally convicted

Pro Se Special Edition 2006

in 1974 and sentenced to 25 years to life. After a
third parole denial, William R. Phillips persuaded
Justice Schlesinger to overturn the parole board and
order a new hearing. The judge said the
commissioners who had decided Mr. Phillips' fate
had apparently failed to take into consideration his
institutional accomplishments. She ordered a new
hearing in front of a different panel.
"If rehabilitation has meaning, if there is a belief
that a man can change, if there is a faith that the
goodness of a person can eventually resurface, then
the law governing release on parole and the
rationale for that law is being perverted by a Board
that refuses to consider only what a man did 37
years ago and is paying for in almost 30 years of
imprisonment," Justice Schlesinger wrote.
On Aug. 25, the Appellate Division, First
Department, unanimously reversed Justice
Schlesinger. It said that the parole board is free to
consider the seriousness of the crime, among other
enumerated factors, and it need not delineate each
of the factors considered.
Aggravating Factors
"[The] Board is required to do more than
merely mouth the statutory criteria,
particularly where as here each factor
recited and brought forth in the parole
interview, other than the crime itself,
militated in favor of release."
Manhattan Supreme Court Justice Shirley
Werner Kornreich in Weinstein v.
Dennison, NYLJ, April 19, 2005.

Page 9

Justice Kornreich said the parole board must
pay more than lip service to the elements it is
supposed to consider along with the instant offense,
such as the prisoner's institutional record. She said
that while the seriousness of the crime is a valid
consideration, the conviction per se should not
preclude parole release and there must be some
aggravating circumstance, beyond the seriousness
of the crime, that warrants denial of parole.
Justice Kornreich's decision is under appeal at
the First Department.
A Parole Board's exclusive reliance on the
severity of the offense to deny parole not
only contravenes the discretionary scheme
mandated by statute, but also effectively
constitutes an unauthorized resentencing of
the defendant.
Appellate Division, First Department, in
Wallman v. Travis, 18 AD3d 304 (2005).
Wallman is a rare case where a trial judge
upheld the parole board only to be reversed on
appeal. It involves a former Manhattan attorney, Jay
Wallman, 64, who stole $4.7 million from his
clients in the mid-1990s. The parole board, in
denying Mr. Wallman's release, found a reasonable
probability that the disbarred attorney would not
remain at liberty without violating the law.
Manhattan Supreme Court Justice Joan A. Madden
upheld the determination, but the First Department
unanimously reversed and ordered a new hearing.
Mr. Wallman was paroled July 6, 2005.
The Decision-Makers

The case centered on a 79-year-old former
advertising executive who in 1991 strangled his
wife and threw her body from the 12th floor
window of their apartment. Herbert Weinstein
pleaded guilty to manslaughter and was sentenced
to a 7-to-21-year term in December 1992. He was
denied parole three times before his petition came
before Justice Kornreich.

The Board of Parole consists of up to 19
members, appointed by the governor and confirmed
by the Senate for six-year, staggered terms. When
a commissioner's term expires, he or she usually
remains on the job until re-appointed or replaced.
Each member is paid $101,600. The governor
designates the chairman, who is paid $120,800.

Page 10

Under Executive Law §259-b(2), members of the
parole board must have at least a bachelor's degree
and five years experience in one or more "fields of
criminology, administration of criminal justice, law
enforcement, sociology, law, social work,
corrections, psychology, psychiatry or medicine."

Pro Se Special Edition 2006

Twelve members are men and five are women. Five
are black or Hispanic. Five are located in New York
City and the remaining 12 are located in Albany,
Buffalo and Rochester areas, according to the
Division of Parole.
They are:

Statutorily, the board's primary responsibilities
are:

0 Making release decisions: The board decides
which convicts serving indeterminate terms
should be released on parole. Under Executive
Law §259, the board must personally interview
all eligible inmates. Inmates do not have a right
to counsel at the interview. Typically, two or
three commissioners visit a prison and interview
a number of inmates on any given day.
0 Establishing release conditions: The board sets
conditions of release for the prisoners it votes to
free, as well as those who are "conditionally
released."
0 An inmate who is not released at his or her
initial appearance, or a subsequent appearance,
can be released on parole after serving
two-thirds of the maximum if there has been no
loss of good time credits. Prisoners serving a
sentence where the maximum term is life (such
as 15-years-to-life or 25-years-to-life) are not
eligible for conditional release.
0 Revoking parole: Under Executive Law §259,
the board is authorized to revoke parole when it
determines that a parolee has violated the
conditions of release "in an important
respect."The board can impose various
sanctions and return the convict to prison.
There are currently 17 members of the Board of
Parole, all appointed by Governor George E. Pataki.

Chairman Robert J. Dennison.
Term expires Aug. 31, 2007. Education: B.A.,
Iona College, history and political science;
M.A., counseling psychology, Manhattan
College. Background: Probation and parole
officer, parole revocation specialist, sixth grade
teacher Politics: Conservative
Vanessa A. Clarke-McCarthy.
Term expires Feb. 7, 2011. Education: B.S.,
sociology, State University at Albany; J.D.,
Albany Law School . Background: Attorney,
law intern with the state Department of
Corrections, counsel to various Senate and
Assembly committees. Politics: Republican
Marietta S. Gailor.
Term expires June 18, 2008. Education: B.A.,
psychology, Russell Sage College. Background:
Probation officer. Politics: Republican
Walter William "Bill" Smith Jr.
Term expires July 6, 2011. Education: B.S.,
business administration. Background:
Investigator with the state Crime Victims
Board, social services investigator. Politics:
Republican
Ileana Rodriguez.
Term expired June 18, 2005. Education: B.A.,
psychology, University of Miami; M.A., clinical
psychology, Long Island University; Ph.D.,
clinical psychology, Long Island University.
Background: Psychologist. Politics: Republican

Pro Se Special Edition 2006

Rosario Guy Vizzie Jr.
Term expires Feb. 6, 2007. Education: B.S.,
political science and psychology, State
University at Brockport. Background: Probation
director, probation officer Politics: Republican
Daizzee D. Bouey.
Term expired June 2, 2005. Education: B.A.,
social welfare, Hampton University (Virginia);
M.S.W., administration, Stonybrook University;
M.B.A., Long Island University Background:
Probation officer and administrator, assistant
c o r r e c t i o n s c o mmi s s i one r Po l i t i c s :
Independence
Vernon C. Manley.
Term expires June 18, 2006. Education: B.A.,
political science, Williams College; M.S., urban
management and policy analysis, The New
School for Social Research. Background:
Executive Director of the Juvenile Community
Service Division of the New York City
Department of Probation Politics: Democrat
Debra J. Loomis.
Term expires June18, 2010. Education: B.A.,
sociology, Russell Sage College Background:
Child protective services supervisor. Politics:
Republican
George C. Johnson.
Term expired July 6, 2005. Education: B.S.,
criminal justice, Empire State College at
Buffalo; M.S., multidisciplinary studies, State
University College at Buffalo. Background:
Corrections officer, chairman of the Erie County
Conditional Release Commission and Public
Safety Officer with the state Office of Mental
Health. Politics: Republican

Page 11

William R. Crowe.
Term expires Aug. 31, 2007. Education: B.A.,
Syracuse University, economics; J.D., State
University at Buffalo School of Law.
Background: Partner at the Buffalo law firm of
Penney, Maier, Wallach & Crowe, assistant
attorney general, assistant district attorney,
acting village justice. Politics: Republican
Edward R. Mevec.
Term expired July 6, 2005. Education: B.A.,
social studies-political science, St. Thomas
Aquinas College; J.D., University of Bridgeport
School of Law. Background: Attorney, arbiter
with the Small Claims Division of the New
York City Civil Court, small claims hearing
officer in Supreme Court, funeral director.
Politics: Republican
Thomas P. Grant.
Term expires June 18, 2010. Education: B.A.,
political science, State University at
Plattsburgh; M.S., educational administration,
State University at Albany Background:
Executive assistant to the chairman of the
Division of Parole, former committee director
for the state Senate Codes Committee and
Judiciary Committee and legislative coordinator
for the Finance Committee. Politics: Republican
Livio Lazzari.
Term expires May 4, 2007. Education: B.A.,
political science, City College of New York;
M.A., political science, New School for Social
Research; J.D., Brooklyn Law School
Background: Parole officer, administrative law
judge presiding over administrative parole
revocation hearings. Politics: Republican

Page 12

John G. Capacci.
Term expires June 18, 2009. Education: B.A.,
government, Notre Dame University; J.D.,
Albany Law School. Background: Partner in the
Wayne County law firm of Zecher, Capacci,
DeValk, Hendricks & Power, former member of
the Wayne County Conditional Release
Commission, former town justice. Politics:
Republican
James B. Ferguson Jr.
Term expires Aug. 31, 2007. Education: B.A.
political science, Marist College; J.D., Pace
University School of Law. Background:
Administrative law judge with the Division of
Parole, former Bronx assistant district attorney.
Politics: Unaffiliated
Patrick M. Gallivan.
Term expires July 6, 2011. Education: B.S.,
Canisius College; M.A., criminal justice, State
University at Albany. Background: Erie County
Sheriff, former state trooper. Politics:
Republican
Degrees and Clergy Support Fail to Prove
Rehabilitation
Can a triple murderer ever win redemption from
the State of New York?
Gerald T. Balone, three-time killer, seven-time
unsuccessful candidate for parole, and holder of a
Master's degree in theology, has his doubts.
Despite earning five college degrees since his
incarceration in 1973, completing three Department
of Labor apprentice programs, garnering scores of
awards for finishing countless counseling and
self-help programs and securing the support of
prominent politicians, three Roman Catholic
bishops and several other clergy and advocates, Mr.
Balone suspects nothing he has done and nothing he
can do will lead to his parole release.
He may well be right.

Pro Se Special Edition 2006

When Governor George E. Pataki took office 11
years ago, a violent felon had roughly a one-in-four
chance of getting parole. Now, the odds are
approximately one-in-25. And while statistics are
not available for multiple killers, it is a safe bet that
their chances of making parole are almost
non-existent, experts say.
Mr. Balone, 53, knows that he can never atone
for his crime. Yet he also argues that the possibility
of redemption was inherent in the sentence that was
imposed. Knowing all the facts of the offense and
the offender, the judge decided that Mr. Balone
should serve a term of 25-years-to-life which,
Mr. Balone contends, implies there is some
possibility that despite the repugnance of his crime,
release would be appropriate after a quarter century.
"If I had life with no parole, I could accept
that," Mr. Balone said in a telephone interview from
prison. "But I wasn't sentenced to life without
parole, I wasn't sentenced to death. I was sentenced
to 25-to-life. If they are going to recognize me for
my worst deeds, they should also recognize me for
my good deeds."
Mr. Balone's worst deeds were admittedly
heinous.
In 1973, Mr. Balone was an angry thug, a
21-year-old man who had been abandoned as a
child, had a fifth grade education and had recently
been paroled from a robbery conviction. His rap
sheet began at the age of 8 when, according to a
presentence report, the "terribly neglected boy" ran
away from a foster home, one in a series of
orphanages, foster homes, detention centers and
reform schools where he spent his formative years.
He was arrested for shoplifting at 10, robbery at 15
and grand larceny at 18.
Mr. Balone had been on parole all of five weeks
for a juvenile offender adjudication when, on
April 24, 1973, he and a co-defendant broke into a
home on the East Side of Buffalo. They bound and
gagged the occupants, a 60-year-old man and his
58-year-old wife, and beat them with a hammer
until they revealed the location of their coin

Pro Se Special Edition 2006

collection. Then Mr. Balone and his confederate
executed their victims with gun shots to the head.
As Mr. Balone and his partner fled, they shot and
killed a third person, who had come to investigate.
Judge James Kane of Buffalo gave Mr. Balone
the maximum sentence, 25-years-to-life. Under the
sentencing laws in effect at the time, there was no
available sentence of life-without-parole, although
such a sentence has since been instituted for certain
kinds of murder. To Mr. Balone, this means the
Legislature had decided that there must be some
circumstances that would justify the release of even
a multiple killer.
But now, with a parole board appointed entirely
by a governor who would eliminate parole and who
has harshly criticized decisions that granted parole
to violent felons, Mr. Balone said bureaucrats have
decided that because of his crime there are no
conditions that will justify his release, a conclusion
he maintains is inconsistent with the laws under
which he was sentenced.
"They are essentially re-sentencing us,"
Mr. Balone complains. "They spend all this money
on educational and therapeutic programs for us and
then basically tell us that it doesn't matter what we
do, they'll never let us out."
Mr. Balone has an extensive dossier of support
letters.
State Senators Velmanette Montgomery,
D-Brooklyn, and Thomas K. Duane, D-Manhattan,
have advocated for his release, as has Assemblyman
Jeffrion L. Aubry, D-Queens. Senator Duane,
ranking minority member of the Senate Crime
Victims, Crime and Correction Committee, said in
his letter that he knows of "no better candidate for
parole." Catholic Bishops Howard J. Hubbard of
Albany, James M. Moynihan of Syracuse and Henry
J. Mansell, formerly of Buffalo and now
Archbishop of Hartford, also sent letters on Mr.
Balone's behalf. Officials at the New York
Theological Seminary, from which Mr. Balone
received a master's degree, indicated that over a
25-year period its graduates have a 96 percent

Page 13

success rate upon release, with only a 4 percent
recidivism rate.
Yet, the parole board has been unmoved.
In its most recent denial in June, the board said
that after giving consideration to Mr. Balone's
educational and vocational achievements and
satisfactory behavior, his release remains
incompatible with the public welfare.
"There is a reasonable probability that you
would not live and remain at liberty without
violating the law," the parole board said. "Your
release at this time would depreciate the seriousness
of the offenses and undermine respect for the law.
Your responses during the interview indicated
limited insight into why you acted so violently."
Both the statute and case law make clear that
parole is neither an entitlement nor a reward for
good behavior. The statute specifically says that
"[d]iscretionary 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 will live and
remain at liberty without violating the law, and that
his release is not incompatible with the welfare of
society and will not so deprecate the seriousness of
his crime as to undermine respect for law." Under
the statute, the parole board establishes its own
guidelines for making parole determinations.
Erie County District Attorney Frank J. Clark,
who was an assistant prosecutor when Mr. Balone
was prosecuted back in the Nixon Administration,
has not taken a stance on whether Mr. Balone
should be released.
"I haven't been in a position to see the change in
him over the period of time," Mr. Clark said. "All I
know is that it was a horribly vicious crime and it
probably would have been one, had it occurred
when the death penalty was in effect, that would
have been death-penalty eligible. Whether he
remains someone who should be incarcerated is an
issue the parole board is in a better position to
judge."

Page 14

Clearly, the parole board has always had
extraordinary discretion. What has changed over the
years, and particularly since Mr. Pataki re-made the
parole board, is the way the panel exercises its
discretion.
Twenty five years ago, shortly after Mr. Balone
was sentenced to a parole-eligible term, more than
70 percent of the prisoners who appeared before the
board were paroled. Now, about 30 percent are
granted discretionary release. It is a new deal,
especially for those who plea bargained at a time
when parole release was a probable eventuality
rather than a theoretical possibility.
Mr. Clark, president of the state District
Attorneys Association, is sensitive to the concern of
some judges and many inmates that the parole board
seems to be usurping the judicial sentencing role.
"When a judge imposes a sentence of between
15 and 25 years [for murder], there is at least an
implicit assumption that the judge felt that the
minimum sentence is the appropriate one to serve,"
Mr. Clark said. "But if they impose the max [as was
the case with Mr. Balone], it is hard to read
anything into that."
Mr. Balone acknowledges that even he would be
hesitant, as a member of a parole board, to take a
chance on someone with his record. But he returns,
time and again, the argument that the law under
which he was sentenced presumed second chances.
After spending most of his life in a series of
state prisons--Elmira, Coxsackie, Attica, Auburn,
Clinton, Great Meadow, Eastern, Shawangunk,
Sullivan, Woodborne, Sing Sing, Tappan,
Downstate, Upstate, Orleans, Collins and now
Fishkill Correctional Facility--Mr. Balone is
reluctantly resigned to the fact that, barring a major
shift in policy, he may well die in prison. Mr.
Pataki's appointees to the parole board, nearly all of
whom are Republicans, will likely continue to
dominate the panel when Mr. Balone next comes up
for a parole hearing in June 2007.
Those appointees have shown little inclination
to release violent felons, and to some extent

Pro Se Special Edition 2006

Mr. Balone is looking beyond the Pataki years,
aware that the next governor could replace a
majority of the commissioners by the end of his
term.
"I have to honestly say that every time I go back
to the parole board, I go back as a better person-with more accomplishments, more support, a better
release plan," Mr. Balone said. "Sooner or later,
maybe, it will be enough. But what do they want me
to do? That is [the] question I can't get answered:
'What do you want me to do?'"
Given Minimum, Inmate 'Resentenced': Board
Denies Release Citing a 'Propensity for Violence,'
but Prison Records Show Otherwise
Although he died seven years ago, "Maximum
John" Clyne remains the judge attorneys in Albany
point to as the embodiment of a tough-sentencing
judge. When Judge Clyne was on the Albany
County bench, defense counsel say, there was only
one likely sentence: the max.
But in the case of Brian E. Jacques, a then
20-year-old man who pleaded to second-degree
murder in 1983, Judge Clyne imposed not the
maximum sentence of 25 years or life, but the
minimum--15 to life. Mr. Jacques, now 42, finished
serving 15 years in 1998, just two weeks after Judge
Clyne died. But four times since then, the parole
board has said that, despite the sentence imposed by
"Maximum John" Clyne, 15 years was not enough
time in prison. Nor was 17, 19 or even 21 years.
The parole denials all stressed the crime
Mr. Jacques committed, or the same crime that led
Judge Clyne to impose a sentence that left open the
possibility of release after 15 years.
In 1998, the parole board said "the gravity of the
instant offense militates against release at this time.
Such release would diminish the severity of the
crime in the eyes of the community and would
undermine respect for the law."
In 2000, it informed Mr. Jacques that the
offense was "a serious escalation of your antisocial

Pro Se Special Edition 2006

behavior which includes convictions for criminal
trespass second, unauthorized use of a motor
vehicle and attempted burglary third-degree."
In 2002, it said the crime represented a "major
escalation of your antisocial behavior and is
indicative of a depraved indifference to human life."
In 2004, it cited Mr. Jacques' "propensity for
violence" and again denying him release.
The record, however, shows no propensity for
violence aside from the instant offense.
Mr. Jacques did indeed have a series of run-ins
with police during the year prior to his arrest for
murder. All of those incidents were directly or
indirectly linked to alcohol abuse. For instance, he
was arrested once for giving beer to a 14-year-old
girl, twice for breaking into bars to steal liquor and
once for getting drunk and stealing a car.
Even the murder was apparently linked to
alcohol.
According to Mr. Jacques' confession--unrefuted
in court and generally supported by a co-defendant's
separate confession--on the night of Nov. 1, 1983,
the defendant consumed 15 to 20 beers with two
friends, who were also drinking heavily. An
argument ensued over some chicken that one of the
friends had apparently stolen from the refrigerator
of the other. The victim was kicked and stomped,
primarily by Mr. Jacques' co-defendant. But Mr.
Jacques, who had a broken leg and was wearing a
cast, also kicked the victim. The victim died and
Mr. Jacques and his co-defendant were both
indicted for second-degree murder. Both pleaded
guilty. The co-defendant got 20-to-life, and remains
incarcerated. Mr. Jacques got 15-to-life from Judge
Clyne.
A pre-sentencing report submitted to Judge
Clyne in 1983 described Mr. Jacques as polite and
remorseful, and indicated that his criminal problems
were rooted in alcoholism. The probation officer
who conducted the investigation and wrote the
report said that all of Mr. Jacques' arrests were the
"direct results from the abuse of alcohol," noting
that the defendant "exhibits a marked change in

Page 15

behavior while under the influence of alcohol."
Still, the officer said, "such violent and overly
aggressive behavior on the part of the defendant,
even while under the influence of alcohol, is
uncharacteristic of past patterns."
Relying on that report, Judge Clyne sentenced
Mr. Jacques to the minimum term, with the
understanding that release was possible after 15
years.
An inmate evaluation, completed by a
supervisor at the Southport Correctional Facility,
where Mr. Jacques is incarcerated, described the
prisoner as friendly and cooperative and indicates
that he has good insight and judgment and that there
is no indication the prisoner harbors homicidal or
suicidal thoughts or tendencies. Other records
showed Mr. Jacques had successfully completed
alcoholism treatment and anger management
programs and obtained a high school and college
degree. Although Mr. Jacques has been cited four
times in the past 22 years for minor disciplinary
infractions, he has never been accused of any
violent act in prison, records reveal. And Mr.
Jacques has not been issued a disciplinary ticket in
nearly five years.
While parole is opposed by the family of the
victim, Mr. Jacques has an unusual ally on his side:
the police detective who arrested him.
Sgt. Richard Connolly, a now retired Cohoes
police officer, said he has gone to bat for perhaps a
total of three criminals he encountered during his 20
years in law enforcement.
"I am no crusader, but he is getting screwed
here," Mr. Connolly said. "He should have been out
after 15 years. I never thought he'd be in this long."
Mr. Connolly, who knew all three of the young
men involved — the two perpetrators and the victim
— said he had known Brian Jacques for years the
way a cop on the beat knows a wayward kid in the
neighborhood. In fact, Mr. Connolly said, it was his
brother's bar that Mr. Jacques broke into to steal
booze. The former detective disputes the parole
board's conclusion that Mr. Jacques has a

Page 16

"propensity" to violence and said that, until the
night of Nov. 1, 1983, he had never known Mr.
Jacques to exhibit any violence.
"He sure wasn't the heavy hitter," Mr. Connolly
said. "The main actor was the other guy, but Brian
did kick him and he was right there when [the
co-defendant] did a job on the guy. I spoke to parole
and wrote letters on [Mr. Jacques'] behalf, but it
seemed to me the parole officer could care less. It
was like I was taking up his time."
The Albany County district attorney, David P.
Soares, did not respond to a request for comment.
In a telephone interview, Mr. Jacques said
denial of parole seems a foregone conclusion
whenever he appears before the parole board.
"I do everything they ask me to do and then I go
back in front of them and all they want to talk about
is the crime," Mr. Jacques said. "I tell them the
same story every time, tell them of my remorse. I
think they know I am never coming back when I get
out, so maybe they want to get as much time out of
me as they can to prove a point. It is heartbreaking."
Mr. Jacques said he has been clean--no alcohol
or drugs--since 1986, three years after he was
incarcerated.
"I will never commit another crime," Mr.
Jacques said. "I've learned my lesson after doing 23
years in this environment. This is not the life for
me."
Mr. Jacques' wife and prime advocate, Tracie
Jacques of Elmira, has lobbied and battled legally
on behalf of her husband. Ms. Jacques, an aspiring
paralegal and criminal justice student at an upstate
community college, has a pending Article 78
petition challenging the latest parole denial.
"Clyne, as stern as he was, gave Brian what was
appropriate," Ms. Jacques, 42, said in an interview.
"The board is re-sentencing Brian because they are
not happy with what Clyne gave him on the
offense."
The Division of Parole would not comment.
Ms. Jacques' legal arguments--that the parole
board is systematically and illegally denying parole

Pro Se Special Edition 2006

to prisoners convicted of violent crimes and that the
board is carrying out the political agenda of the
governor--have all been tried by other prisoners, to
no avail. But Ms. Jacques said she will persist until
her husband comes home.
"If people in the right places see what is going
on, maybe this will change," said Ms. Jacques, a
native of New England. "My husband laughs
because I have so much faith. We go through bouts
where we don't think he will ever come home. But
I told him if the [Boston] Red Sox can win the
World Series, we can win too."
Elderly, Sick, 'Model' Prisoners Met Barriers to
Early Release
Former attorneys Frank Marino and Shirley
Ehman made an unlikely pair of ex-cons.
Married in 1944 and admitted to the bar in 1947
and 1945, respectively, they were each sentenced in
1997 to 3-to-9 years for stealing $1.6 million from
their clients' estates.
During their six years in prison--the maximum
stay under their sentences for inmates, such as
Mr. Marino and Ms. Ehman, who earn certificates
of eligibility--the Long Island couple became a
symbol of the ongoing conflict between the
judiciary and the state parole board.
After the parole board first denied Mr. Marino
parole, Queens Supreme Court Justice Herbert A.
Posner made the unusual decision to order the board
to release the 82-year-old Mr. Marino in
March 2001.
Nonetheless, when the parole board next met in
January 2002, it again denied Mr. Marino parole.
The board was reportedly unaware of Justice
Posner's order.
Two months later, Queens Supreme Court
Justice Allan R. Weiss once again ordered
Mr. Marino released. He ruled that the parole board
failed to follow a section of the Corrections Law
that establishes a presumption in favor of parole
when a prisoner has completed the minimum period

Pro Se Special Edition 2006

Page 17

of incarceration and earned a certificate of
eligibility.
The decision however resulted in Mr. Marino
being released only days before his
conditional-release date.
At issue in Mr. Marino's case, as in most appeals
of parole board decisions, was whether the board
properly applied the standards set forth in the New
York Codes, Rules and Regulations.
Under the NYCRR, the board members must
consider, among other things, the applicant's
institutional record, his performance in a temporary
release program (if any) and his release plans.
By those standards, both Mr. Marino and his
wife appeared strong candidates for release. They
were widely described as model prisoners who

would be welcomed back by their community.
Nonetheless, the two were both repeatedly denied
parole until March 2003.
The delay in parole for Mr. Marino and his wife
contributed to their not being reunited until days
before her death.
Ms. Ehman was not paroled until she became
too sick to be held any longer, according to the
couple's daughter, attorney Christine Gartner.
"They kept her until the bitter end even though
two doctors said she was going to die," Ms. Gartner
said. "The day we picked her up she came out in a
wheelchair and in diapers."
Ms. Ehman was unable to communicate. She
died six weeks later.
Mr. Marino died in November at the age of 87.

›

Page 18

Pro Se Special Edition 2006

BOARD DECISIONS BY CATEGORY (Releases/Interviews)
Year

A-1

Violent Felonies*

Legislative Violent
Felonies**

Drug

Total
Offenses

1992-93

47/202

(23%)

3,817/7,421

(51%)

6,548/8,710

(75%)

13,456/21,802 ( 6 2 % )

1993-94

62/221

(28%)

3,974/7,690

(52%)

7,022/9,415

(75%)

14,232/23,035 ( 6 2 % )

1994-95

42/167

(25%)

3,547/7,316

(48%)

6,566/8,756

(75%)

12,925/21,611 ( 6 0 % )

1995-96

24/173

(14%)

3,516/7,851

(45%)

6,182/8,555

(72%)

12,178/21,541 ( 5 7 % )

1996-97

15/160

(9%)

2,878/7,533

(38%)

6,162/8,295

(74%)

11,400/20,698 ( 5 5 % )

1997-98

19/185

(10%)

2,129/6,442

(33%)

6,432/8,764

(73%)

10,930/20,470 ( 5 3 % )

1998-99

14/203

(7%)

1,131/5,592

(20%)

5,987/10,050 (60%)

8,992/21,316

(42%)

1999-00

16/218

(7%)

1,049/4,896

(21%)

5,820/8,775

(66%)

8,734/19,251

(45%)

2000-01

8/258

(3%)

881/4,185

(21%)

5,632/8,063

(70%)

8,309/17,407

(47%)

2001-02

10/235

(4%)

682/3,328

(20%)

4,968/7,293

(68%)

7,415/16,142

(46%)

2002-03

10/242

(4%)

467/2,628

(18%)

4,482/6,796

(66%)

6,889/15,159

(45%)

2003-04

13/265

(5%)

441/2,371

(19%)

4,081/5,699

(72%)

6,413/13,617

(47%)

2004-05

9/263

(3%)

337/2,151

(16%)

2,588/4,244

(61%)

4,448/11,750

(38%)

* Murder 1st and 2nd, Attempted Murder 1st, Kidnapping, and Arson
** Other Violent Felonies, such as Attempted Murder, Rape, Robbery and Burglary

Source: Office of Policy Analysis

Pro Se Special Edition 2006

Page 19

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Page 20

Pro Se Special Edition 2006

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