In the Matter of Jorge L. Linares, Appellant,v.Andrea W. Evans,, Respondent.

Brief

N.Y.September 8, 2015

APL 2014-00076 Court of Appeals of the State of New York In the Matter of JORGE LINARES, Petitioner-Appellant, -against- ANDREA W. EVANS, CHAIR OF THE NEW YORK STATE BOARD OF PAROLE, Respondent-Respondent. BRIEF FOR RESPONDENT IN RESPONSE TO BRIEFS OF AMICI CURIAE BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General KATE H. NEPVEU Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent The Capitol Albany, New York 12224-0341 Telephone No. (518) 776-2016 Facsimile No. (518) 915-7724 Dated: September 3, 2015 Reproduced on Recycled Paper i TABLE OF CONTENTS PAGE 0BTABLE OF AUTHORITIES ...................................................................... ii PRELIMINARY STATEMENT ................................................................. 1 ARGUMENT AMICI FAIL TO OFFER A BASIS FOR GRANTING PETITIONER RELIEF BEYOND THAT PROVIDED BY THE JUDGMENT BELOW ............................................................................................... 2 CONCLUSION .......................................................................................... 8 ii 0BTABLE OF AUTHORITIES CASES PAGE Garfield, Matter of v. Evans, 108 A.D.3d 830 (3d Dep’t 2013) ....................................................... 6 Hawkins, Matter of v. N.Y.S. Dep’t of Corr. & Community Supervision, Index No. 0011-15 (Sup. Ct. Sullivan County, May 11, 2015) ........ 7 STATE STATUTES Executive Law § 259-c(4)........................................................................................... 3 § 259-i(2)(c)(A) ............................................................................... 2,3 § 259-i(2)(c)(A)(i)-(viii) ...................................................................... 4 L. 2011, Ch. 62, § 1, Part C, § 1, subpart A, § 38-b .................................. 3 STATE RULES AND REGULATIONS 9 N.Y.C.R.R. § 8002.3(a) ........................................................................................ 6 PRELIMINARY STATEMENT Respondent Chair of the Board of Parole submits this brief in response to the amicus curiae briefs that the Court recently accepted for filing, one from the Columbia Law School Prisoners and Families Clinic of Morningside Heights Legal Services, Inc., and the other from eight criminology experts. Amici do not attempt to convince the Court that petitioner is aggrieved by the judgment below, a judgment that assures that petitioner will be considered for parole de novo with a COMPAS instrument and pursuant to newly promulgated regulations. Amici take no position at all on respondent’s motion to dismiss the appeal. Instead, amici assume for purposes of argument that the Court retains this appeal, and that the case presents the question whether the Board is using the COMPAS properly. On that assumption, amici seek to explain the policy benefits of using a risk and needs assessment instrument known as the COMPAS to evaluate an inmate’s risk of recidivism. Amici thus ignore the other two standards the Board is required to consider before granting discretionary parole release: that “release [1] is not incompatible with the welfare of society and [2] will not so deprecate the seriousness of [the] crime as to undermine respect for the 2 law.” Executive Law § 259-i(2)(c)(A). Neither amici—nor petitioner for that matter—argues that the COMPAS is useful for purposes of addressing these other two standards. And indeed, the COMPAS is of limited use for addressing these standards because it not designed to address broader questions of society’s welfare, public perceptions of the seriousness of a crime, or whether release would undermine respect for the law. The Court should therefore reject amici’s position that the 2011 amendments to the Executive Law required the Board to treat a risk and needs assessment instrument such as the COMPAS as the presumptive basis for all parole release decisions, rather than as a factor relevant to those decisions. ARGUMENT AMICI FAIL TO OFFER A BASIS FOR GRANTING PETITIONER RELIEF BEYOND THAT PROVIDED BY THE JUDGMENT BELOW If the Court declines to dismiss this appeal and reaches the question of the proper role of the COMPAS in parole decisions, it should reject amici’s argument that the 2011 amendments to the Executive Law require the Board to treat a risk and needs assessment instrument such as the COMPAS as the presumptive basis for all parole release decisions. (See Clinic Br. at 3-4; Criminology Experts Br. at 2-4.) 3 As we have explained (Resp. Br. at 4-7), when the Legislature amended the Executive Law in 2011, it directed the Board to “establish written procedures for its use in making parole decisions as required by law . . . [which] shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist members of the state board of parole in determining which inmates may be released to parole supervision.” Exec. L. § 259-c(4); see 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A, § 38-b. The Legislature did not define “incorporate,” and thus left the Board to interpret its responsibilities under the statute. At the same time, the Legislature did not change the three substantive standards that the Board is required to apply when deciding whether to grant parole. Specifically, the Board must consider not only (1) “if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law,” but also whether the inmate’s release (2) “is not incompatible with the welfare of society” and (3) “will not so deprecate the seriousness of his crime as to undermine respect for law.” Executive Law § 259-i(2)(c)(A). And the Legislature also did not change the requirement that, to decide 4 whether the substantive standards are satisfied, the Board must weigh eight specifically enumerated factors. See Executive Law § 259-i(2)(c)(A)(i)-(viii). In their briefs to the Court, amici address the policy benefits of using the COMPAS to evaluate an inmate’s risk of recidivism and rehabilitation needs. And on the basis of those benefits, amici argue that the Board should be required to use the COMPAS as the presumptive basis for all parole release decisions. (Clinic Br. at 3; Criminology Experts Br. at 3.)1 Amici thus simply ignore that the COMPAS is not designed to address all of the standards the Board is required to consider. The COMPAS cannot evaluate broader questions of society’s welfare, public perceptions of the seriousness of a crime, or whether release would undermine respect for the law. Indeed, an inmate’s release could be incompatible with the welfare of society or 1 Arguably, the brief of the criminology experts makes a more limited argument, that COMPAS must be used in deciding only the question “whether ‘there is a reasonable probability that,’ if an inmate is released, ‘he will live and remain at liberty without violating the law,’” not in deciding whether release is appropriate. (Criminology Experts Br. at 4.) That is an uncontroversial proposition, but also an unhelpful one, because as noted above, that is only one of the standards that must be met before discretionary release can be granted. 5 unduly deprecate the seriousness of a crime, despite a high probability of success on parole. In this case the Board had before it several facts pointing strongly against parole release at that time. First, petitioner was convicted after a jury trial of serious offenses, including two counts of first-degree rape and two counts of first-degree sexual abuse of a nine-year-old victim. (R. 63-64, 104.) Second, both at sentencing and before the Board, petitioner showed limited remorse, instead continuing to maintain his innocence. (R. 75, 106-107.) Third, this was petitioner’s very first appearance before the Parole Board after becoming eligible for parole. (R. 72.) On these facts, the Board might reasonably find that petitioner’s release would be incompatible with the welfare of society by sending the wrong message to the public and would unduly deprecate the seriousness of his crime as to undermine respect for law, even if petitioner received favorable COMPAS results. Because the COMPAS can fully address only one of the three substantive standards that the Board is required to consider before granting an inmate discretionary parole release, the Board reasonably declined to interpret the 2011 amendments to require it to treat the 6 COMPAS (or a comparable risk and needs assessment instrument) as the presumptive basis for all of its parole release decisions. And as we have explained (Resp. Br. at 15-16), the Board’s interpretation is entitled to deference. To the extent amici argue that the Board should be required to consider the COMPAS (Criminology Experts Br. at 3), that argument provides no basis for relief. The Board has now expressly acknowledged that it is required to consider the COMPAS in making parole release decisions. 9 N.Y.C.R.R. § 8002.3(a); see also Matter of Garfield v. Evans, 108 A.D.3d 830 (3d Dep’t 2013). Indeed, for this very reason the Board did not oppose petitioner’s appeal in the Appellate Division, and sought a remand for the purpose of making a new decision taking the COMPAS into account. Finally, to the extent amici argue that the Board is now failing to give sufficient weight to the COMPAS and an inmate’s recidivism risk in its parole release decisions (Criminology Experts Br. at 5-7; Clinic Br. at 5), it would be premature to address that issue in this appeal. In petitioner’s case, the Board has not even considered petitioner’s COMPAS, let alone the weight to ascribe it. There are, however, several 7 cases now pending in the lower courts that would provide a more appropriate vehicle for considering the issue. For example, amici both cite Matter of Hawkins v. N.Y.S. Dep’t of Corr. & Community Supervision, Index No. 0011-15 (Sup. Ct. Sullivan County, May 11, 2015). Respondent’s appeal of that decision is now pending in the Appellate Division. 8 CONCLUSION The Court should dismiss this appeal for the reasons stated in respondent’s motion to dismiss. Alternatively, the Court should affirm the order of the Appellate Division and the matter should be remitted to the agency for a de novo interview under the currently applicable provisions of the Executive Law and title 9 of the New York Codes, Rules, and Regulations. Dated: Albany, New York September 3, 2015 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General KATE H. NEPVEU Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent By: _____________________________ KATE H. NEPVEU Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 776-2016 Reproduced on Recycled Paper