Roberson v. Cuomo

• Decision Date: 10 March 2021
• Docket Number: No. 20 Civ. 2817 (CM),20 Civ. 2817 (CM)
• Citation: 524 F.Supp.3d 196
• Parties: Frederick ROBERSON, on behalf of himself and all others similarly situated, Plaintiffs, v. Andrew M. CUOMO, Governor of New York, in his official capacity and Tina M. Stanford, Chairperson of the New York State Board of Parole, in her official capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

524 F.Supp.3d 196

Frederick ROBERSON, on behalf of himself and all others similarly situated, Plaintiffs,

v.Andrew M. CUOMO, Governor of New York, in his official capacity and Tina M. Stanford, Chairperson of the New York State Board of Parole, in her official capacity, Defendants.

No. 20 Civ. 2817 (CM)

United States District Court, S.D. New York.

Signed March 10, 2021

Corey Stoughton, Christopher Thomas Dunn, Daniel Ross Lambright, Molly Knopp Biklen, New York Civil Liberties Union, Philip Louis Desgranges, Legal Aid Society, New York, NY, for Plaintiffs.

Andrew Stuart Amer, New York State Department of Law, Amanda Yoon, Nys Office of The Attorney General, New York, NY, for Defendants.

DECISION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT, AND AMENDING THE CAPTION IN THIS ACTION¹

McMahon, C.J.:

In this case, named plaintiff Frederick Roberson and the putative class ("Plaintiffs") filed suit against Defendants Andrew M. Cuomo, Governor of the State of New York, and Tina M. Stanford, Chairperson of the New York State Board of Parole (the "Board") (collectively, "Defendants" or the "State") challenging the constitutionality of New York's regulations for the detention of parolees who are awaiting final parole revocation hearings due to alleged violations of the conditions of their release. The parties have cross-moved for summary judgment. (Dkt. Nos. 57, 65.) This Court previously denied Plaintiffs’ motion for a preliminary injunction (Dkt. No. 33); familiarity with that decision is presumed.

For the reasons outlined below, Defendants’ motion is GRANTED, and Plaintiffs’ cross motion is DENIED.

BACKGROUND

New York's Parole Revocation Procedures

Parole is an alternative method by which a prisoner may complete his or her sentence. Admission to parole does not terminate a prisoner's sentence; "The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." Morrissey v. Brewer , 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). These conditions restrict a parolee's activities substantially beyond the ordinary restrictions imposed by law on an individual citizen. Id. at 478, 92 S.Ct. 2593. A parole officer has the power to enforce the conditions of parole by revoking parole and returning the parolee to prison, but to do so, the officer must comply with minimum due process procedures, which the Supreme Court set forth in Morrissey : a preliminary hearing by someone other than the parole officer to confirm the existence of probable cause of a violation, and a final revocation hearing. Along with a majority of states, New York detains alleged parole violators pending their final revocation hearing if the parole warrant is not lifted at the preliminary hearing stage.

Not every violation of parole results in revocation. Before a decision is made to issue a parole violation warrant, the New York State Department of Corrections and Community Supervision ("DOCCS") conducts a thorough examination and evaluation of the alleged parole violation, including an assessment of the risk to the community posed by the parolee's release.² This initial assessment is made by the parolee's parole officer, with the involvement of a Senior Parole Officer and the Bureau Chief in DOCCS's Community Supervision Unit. They evaluate factors including the nature of the conduct giving rise to the alleged violation; the nature of the parolee's underlying offense; the parolee's criminal history; the parolee's history of compliance or non-compliance with conditions of supervision; and the supervision level assigned to the parolee under the Correctional Offender Management Profiling for Alternative Sanctions ("COMPAS") assessment tool. They also consider whether there is an opportunity to employ graduated sanctions or alterative measures to obtain a positive behavior outcome.

If, after reviewing these factors, the parole officer and his supervisors determine that a parolee's release would not pose a risk to public safety or to the parolee's health and welfare, or if they conclude that graduated sanctions or another alternative measure might result in a positive behavior outcome, the Senior Parole Officer does not issue the parole violation warrant. Otherwise, with the Bureau Chief's approval, the Senior Parole Officer will issue the parole warrant. Only if the alleged violation consists of a new criminal arrest, an alleged violation of law, or absconding from supervision may the Senior Parole Officer issue a warrant without the Bureau Chief's approval. N.Y. Exec. Law § 259-i(3)(a)(i) ; 9 N.Y.C.R.R. § 8004.2.

If a parole warrant issues, the parolee is arrested. As outlined at length in this Court's earlier opinion, the Executive Law and the New York Code of Rules and Regulations require that notice of the charged violation be given to the parolee within three days of initial detention. Unless the parolee has been convicted of a new crime, s/he has the right to a preliminary hearing before a hearing officer who has had no prior supervisory involvement over the alleged violator. That preliminary hearing must take place within 15 days following execution of the parole warrant. At the preliminary hearing, the hearing officer determines whether there exists probable cause that a violation of release "in an important respect" has been committed.

The parolee has the right to appear and to present witnesses and evidence on his behalf, as well as the right to confront and cross examine witnesses. The hearing officer must prepare a written decision stating the reasons for the determination and citing to the evidence on which the decision was made.

If the hearing officer finds that there is no probable cause to believe the parolee violated one or more conditions of release in an important respect, the officer must dismiss the violation charges and release the parolee back to supervision. If there is a finding of probable cause – either by determination at the preliminary hearing or the parolee's waiver of the right to a preliminary hearing – a final revocation hearing is scheduled to occur within 90 days.

Every parolee has the right to be represented by counsel at a final revocation hearing, and counsel are assigned to represent indigent parolees. Parolees have the right to compel witnesses to appear at the hearing and provide testimony, the right to subpoena and submit documentary evidence, the right to confront and cross examine witnesses called to testify against them, and the right to present evidence in mitigation for the purpose of being restored to supervision. At the final revocation hearing, an administrative law judge ("ALJ") determines whether or not there is a preponderance of the evidence that the alleged violator violated one or more conditions of release in an important respect. If not, the ALJ must dismiss the violation charges and release the parolee to supervision. If so, the ALJ must revoke the parolee's parole. After parole is revoked, the ALJ may restore the parolee to supervision, place the parolee in a transition facility, or reincarcerate the parolee. See N.Y. Exec. Law § 259-i(3)(e).

These procedures were adopted by New York State to comport with the due process requirements announced by the United States Supreme Court in 1972 in Morrissey . They have been repeatedly held to provide due process to persons accused of violating parole – an accusation that, owing to the fact that the parolee is still serving his or her sentence, does not trigger "the full panoply of rights" that attach in the context of a criminal prosecution. Morrissey , 408 U.S. at 480, 92 S.Ct. 2593.

None of these procedures is challenged as unconstitutional.

Plaintiffs’ challenge addresses what happens to the parolee between the finding of probable cause at the preliminary hearing (or the waiver thereof) and the final revocation hearing.

Plaintiffs’ Challenge to Mandatory Detention

Pursuant to Executive Law § 259-i(3), if a parole officer has probable cause to believe that a parolee has violated the terms and conditions of parole, a warrant may (not must) be issued for temporary detention in accordance with the rules of the Parole Board. However, at the preliminary hearing, if the hearing officer finds that there is probable cause to find that the alleged violator has violated one or more of the conditions of parole "in an important respect," s/he "shall direct that the alleged violator be held for further action." 9 N.Y.C.R.R. § 8005.7(a)(5) (emphasis added). Probable cause can be made in one of three ways: it can be determined at a preliminary hearing; will be presumed if the parolee waives a preliminary hearing; or must be found upon presentation of proof that the parolee has been convicted of a new crime while under supervision. The Board will only order a final revocation hearing for a parolee after a finding of probable cause if the parolee is in custody or has absconded. See 9 N.Y.C.R.R. § 8004.3(d)(1).

Read together, these regulations mandate detention for all parolees awaiting a final revocation hearing.

Plaintiffs allege that this mandatory detention scheme – which is in force in 30 of the 50 states, and which has been followed unchallenged for over four decades – is unconstitutional. Invoking 42 U.S.C. § 1983 and the Due Process Clause of the United States Constitution, they ask this Court to do what the legislature has thus far not chosen to do – craft some alternative to mandatory detention, in the nature of a "bail-like" procedure that would require evaluation of a parolee's suitability for release pending the final revocation hearing, at which the parolee would have rights akin to those attendant on a bail hearing, including the right to present evidence to a neutral decision maker, who would have to conclude, in a reasoned decision, in writing or on the record, that the parolee...