In the Matter of Jorge L. Linares, Appellant,v.Andrea W. Evans,, Respondent.BriefN.Y.September 8, 2015STATE OF NEW YORK COURT OF APPEALS ------------------------------------------------------ x In the Matter of the Application of x x JORGE LINARES, x x Petitioner-Appellant, x x For an Order Pursuant to Article 78 of the x New York Civil Practice Law and Rules, x x —against— x x ANDREA W. EVANS, x Chair, New York State Board of Parole x x Respondent-Respondent x ------------------------------------------------------ x AMICUS CURIAE BRIEF OF COLUMBIA LAW SCHOOL PRISONERS AND FAMILIES CLINIC Philip M. Genty, Esq. MORNINGSIDE HEIGHTS LEGAL SERVICES, INC. Columbia Law School, Prisoners and Families Clinic 435 West 116th Street New York, NY 10027 Tel: (212) 854-3123 Facsimile: (212) 854-3699 pgenty@law.columbia.edu On the Brief: Meredith Manning, Law Graduate Daniel Pohlman, Law Graduate TABLE OF CONTENTS Table of Authorities……………………………………………………...…..i Introduction………………………………………………………………… 1 Argument….................................................................................................... 6 I. CONSISTENT USE OF AND RELIANCE UPON RISK AND NEEDS ASSESSMENTS IN PAROLE DECISION-MAKING BENEFITS CHILDREN AND FAMILIES BY CREATING MORE TRANSPARENT AND PREDICTABLE PAROLE RELEASE POLICIES…….........................................................................................…. 6 II. CONSISTENT USE OF AND RELIANCE UPON RISK AND NEEDS ASSESSMENTS IN PAROLE DECISION-MAKING ALSO FACILITATES SUCCESSFUL POST-RELEASE COMMUNITY REINTEGRATION………............ ............................................................. 14 Conclusion…………...……………………………………………………..17 i TABLE OF AUTHORITIES Case Matter of Hawkins v. N.Y.S. Department of Corrections and Community Supervision and N.Y.S. Board of Parole, Index No. 0011-2015, slip op. (Sup. Ct., Sullivan Co. May 11, 2015)………………………………………….. 3,4 Legislation, Statutes, and Directives N.Y.S. Department of Corrections and Community Supervision, Directive 8500 (August 21, 2013)………………………………………………………………… 2 N.Y. Laws 2011, ch. 62, Part C, Subpart A…………………………………….. 2,3 N.Y. Soc. Serv. Law §384-b(3)(l) (2015)……………………………………….. 13 Books PRISONERS ONCE REMOVED: THE IMPACT OF INCARCERATION AND REENTRY ON CHILDREN, FAMILIES, AND COMMUNITIES (Jeremy Travis & Michelle Waul, eds., 2003)….………………………………………………. 6,9,10,11,12,15 Jeremy Travis, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY (2005)………………………………………………………………15,16 Articles and Reports James Austin and Kenneth McGinnis, Classification of High Risk and Special Management Prisoners: A National Assessment of Current Practices, U.S.D.O.J: NATIONAL INSTITUTE OF CORRECTIONS (2004)…………………………………. 7 Christopher Baird, A Question of Evidence: A Critique of Risk Assessment Models Used in the Justice System, FOCUS: VIEWS FROM THE NATIONAL COUNCIL ON CRIME AND DELINQUENCY 7 (2009)…………………………………………….. 7 Jeffery Morenoff & David Harding Incarceration, Prisoner Reentry, and Communities, 40 ANNUAL REV. SOC. 411 (2014)……………………………... 14 N.Y.S. Division of Criminal Justice Services, Technology Advancing Practices, www.criminaljustice.ny.gov/opca/technology.htm ........................... …………. 7 ii Maria Sapouna, What Works to Reduce Reoffending: A Summary of the Evidence, Justice Analytical Services: Scottish Government (2011)……………………… 8 Eileen Sullivan, Milton Mino, Katherine Nelson, FAMILIES AS A RESOURCE IN RECOVERY FROM DRUG ABUSE: AN EVALUATION OF LA BODEGA DE LA FAMILIA, Vera Institute of Justice (2002), available at www.ncjrs.gov/pdffiles1/nij/grants/195087.pdf...................................................15 Jeremy Travis, Elizabeth Cincotta McBride, Amy L. Solomon, Families Left Behind: The Hidden Costs of Incarceration and Reentry (2005), available at www.urban.org/UploadedPDF/310882_families_left_behind.pdf..........7,10,12,15 Christy A. Visher and Jeremy Travis, Transitions from Prison to Community: Understanding Individual Pathways, 29 ANNUAL REV. OF SOC. 89 (2003)………………………………………14,15-16 Christopher Wildeman and Bruce Western, Incarceration in Fragile Families, 20 THE FUTURE OF CHILD. 157 (2010)………………………………………….. 6 Women’s Prison Association, When a Mother Is Arrested: How the Criminal Justice and Child Welfare Systems Can Work Together More Effectively: A Needs Assessment Initiated by the Maryland Department of Human Resources (1996)……………………………………………………… 10 Additional Materials NORTHPOINTE INSTITUTE, Measurement and Treatment Implications of COMPAS and Reentry Scales (2009) (available at www.michigan.gov/documents/corrections/Timothy_Brenne_Ph.D._Meaning_and _Treatment_Implications_of_COMPAS_Reentry_Scales_297503_7.pdf)........ 8 Northpointe Software Suite, www.northpointeinc.com/products/northpointe- software-suite...................................................................................................... 2 1 INTRODUCTION The parole process, properly considered, is more than release. It is the act of reunifying the incarcerated with family members, and reintegrating them into the community. It involves not only parole determinations, but also the processes used to arrive at those determinations, the policies surrounding those processes, and continuing review and support upon release. The impact of the parole process goes beyond the parolee alone; it affects children and other family members, friends, and community members. Thus, the success of the parole process should be evaluated on a broader scale than a binary determination based only on the individual’s criminal history. Consistent application of risk and needs assessment tools, such as the Correctional Offender Management Profiling for Alternative Sanction (COMPAS), with explanations for deviations from COMPAS-derived classifications and recommendations, can help to achieve these broader goals by reducing uncertainty in the parole process. Coupled with a detailed explanation of the reasons for the decision – including the factors that must be addressed before release can be granted – this application has the potential to replace a currently opaque, purely subjective determination with something that can be understood. This in turn can help families and those 2 who are incarcerated work together to prepare and plan for a life after release. Consistent application of a risk and needs assessment device can therefore help not only to further public safety, but also to improve the lives of those released, their families, and their community. This brief is not intended to argue that one type of risk and needs assessment is inherently the best and should be applied in every state. However COMPAS, one such assessment system1, both was designed using data for New York State and is already prepared for and used in New York prisons.2 Therefore, at present COMPAS is probably best suited to the task of making parole decisions in New York. The systematic use of and reliance on risk and needs assessment devices such as COMPAS are contemplated by parole legislation enacted in 20113. The legislation amended Section 259-c of the Executive Law to require the Board of Parole to “establish written procedures for its use in making parole decisions as required by law.”4 1 Northpointe Software Suite, www.northpointeinc.com/products/northpointe-software- suite (last visited June 16, 2015) 2 See N.Y.S. Department of Corrections and Community Supervision, Directive 8500 (August 21, 2013) (COMPAS Assessments/Case Plan) 3 N.Y. Laws 2011, ch. 62, Part C, Subpart A 4 Id. 3 Section 259-c(4), as amended, further provides: Such written procedures 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.5 In adding this language to Section 259-c, the Legislature required the Board to establish agency-wide procedures that would govern the decision- making of all parole board members. A critically important aspect of the legislation is that risk and needs assessments are intended to be a new method for making parole release determinations. However, the Board has instead been treating the assessments merely as an additional discretionary factor to be considered. This observation was recently made in Matter of Hawkins v. N.Y.S. Department of Corrections and Community Supervision and N.Y.S. Board of Parole, No. 0011-2015, slip op. (Sup. Ct., Sullivan Co. May 11, 2015). In discussing the section of the state parole regulations that was revised in response to the 2011 legislation, the court noted: 5 Id. 4 [I]t appears that the regulation adds as factors that which the legislature intended as methods for assessing whether an inmate has presumptively met the standard for parole release. This, in turn, allows the board to treat the risk and needs assessment in the same manner in which it treats any of the eight factors listed in §259-i(2)(c)(A), and assign it any weight, or no weight at all. The statutory scheme, however, is clear that the validated [risk and needs] instrument must be a point of departure for the assessment, and the board must consider the listed statutory factors in deciding whether the presumptive findings from the risk and needs instrument ought to be disturbed.6 Thus, treating the application of the risk and needs assessment merely as one in a list of parole release “factors” – as the Board has been doing – inevitably results in inconsistent applications of COMPAS, defeating the purpose of the 2011 legislation. When the Legislature enacted the 2011 amendments, it intended a risk and needs assessment to be used as a method for decision-making in every case, not just as a factor to be applied with unfettered discretion. The use of the risk and needs assessment ensures consistency and evidence-based objective decision-making. It does not have to be rigidly applied in every case; in the exceptional case it can be overridden or departed from, if there are articulated reasons for doing so. However, as a scientific and evidence-based instrument, COMPAS loses its usefulness as a 6 Id. at 5 (decision of Hon. Frank J. LaBuda, discussing 9 N.Y.C.R.R. §8002.3) (emphasis in original) 5 tool for decision-making if it is not generally applied. The Parole Board’s failure to apply COMPAS consistently, and rely upon it in its decisions, therefore undermines the central goal of the 2011 amendments. The brief argues that consistent application of risk and needs assessment devices, as contemplated by the 2011 legislation, is beneficial to the individual, family, and community. Point I discusses the impact that consistent application of COMPAS has on the families of those facing parole determinations, focusing on the benefits of increased ability to plan and decreased uncertainty. Point II describes the additional benefits that this has on communities as individuals leave prison and reintegrate into society. 6 ARGUMENT I. CONSISTENT USE OF AND RELIANCE UPON RISK AND NEEDS ASSESSMENTS IN PAROLE DECISION- MAKING BENEFITS CHILDREN AND FAMILIES BY CREATING MORE TRANSPARENT AND PREDICTABLE PAROLE RELEASE POLICIES Imprisonment, removal from the family, eventual parole, and reunification have a substantial impact not only for those who are incarcerated, but also for their families and children. As others have argued: Despite almost universal agreement that strong families are a powerful source of social order and public safety, U.S. crime policy has, in the name of public safety, produced more vulnerable families and probably reduced the life chances of their children. To avoid contradictions like this, policy makers must ask of any proposed reform: what will it do to families?7 These principles apply fully to the parole release process, because it is “the cycle of having a parent imprisoned and released” that is most harmful to a child’s well-being.8 Thus, when examining the beneficial effects of consistent use of COMPAS, one must consider the impact on families and children. Children experience the loss of a parent as a traumatic event, and that trauma diverts children’s energy away from developmental tasks.9 Consistent application 7 Christopher Wildeman and Bruce Western, Incarceration in Fragile Families, 20 THE FUTURE OF CHILD. 157, 170 (2010) 8 Id. at 168 9 PRISONERS ONCE REMOVED: THE IMPACT OF INCARCERATION AND REENTRY ON CHILDREN, FAMILIES, AND COMMUNITIES 16 (Jeremy Travis & Michelle Waul, eds., 2003) 7 of COMPAS potentially lessens this trauma, reducing the negative impact that stress caused by the parole process can place on children and families. Application of COMPAS comes in two primary stages: 1) identifying an incarcerated person’s risk level during placement in order to identify treatment options, medical and psychological needs, desirable programming and services, and security requirements that have an impact on custody level; and 2) predicting likelihood of recidivism on release to determine whether parole is appropriate.10 COMPAS focuses on both rehabilitation and predicting the likelihood of future criminal acts. COMPAS scores help correctional personnel determine appropriate placement in a facility, identify programs that would benefit the incarcerated individual, and decide whether parole should be granted.11 COMPAS also emphasizes the importance of strengthening marital, family, and peer relationships.12 The application of COMPAS advises that (hereafter “PRISONERS ONCE REMOVED”). See also Jeremy Travis, Elizabeth Cincotta McBride, Amy L. Solomon, Families Left Behind: The Hidden Costs of Incarceration and Reentry (2005), available at www.urban.org/UploadedPDF/310882_families_left_behind.pdf (hereafter “Families Left Behind”). 10 See James Austin and Kenneth McGinnis, Classification of High Risk and Special Management Prisoners: A National Assessment of Current Practices, U.S.D.O.J: NATIONAL INSTITUTE OF CORRECTIONS 18-19 (2004). 11 New York State Division of Criminal Justice Services, Technology Advancing Practices, www.criminaljustice.ny.gov/opca/technology.htm (last visited June 23, 2015) 12 Christopher Baird, A Question of Evidence: A Critique of Risk Assessment Models Used in the Justice System, FOCUS: VIEWS FROM THE NATIONAL COUNCIL ON CRIME AND DELINQUENCY 7 (2009) 8 for those with low levels of family support “[t]he case management strategy may be to see if family bonds can be strengthened or reestablished if appropriate.”13 The individual may therefore come out of prison with a renewed investment in his or her family and priorities in life that are consistent with the rehabilitative goals that parole legislation has deemed to be worthwhile. Mandatory consideration of COMPAS also encourages participation in parenting programs. Parenting programs not only discourage re-offense, but also encourage participants to act as positive role models in the community and for their families.14 In addition to the individual impact, mandatory application of COMPAS creates societal benefits by reestablishing connections to the family. Effective programming can therefore provide a needed bridge between those who are incarcerated and their families on the outside. Perhaps most important, by reducing uncertainty, consistent application of COMPAS allows for planning by family members. 13 NORTHPOINTE INSTITUTE, Measurement and Treatment Implications of COMPAS and Reentry Scales, at 11 (2009) (available at www.michigan.gov/documents/corrections/Timothy_Brenne_Ph.D._Meaning_and_Treat ment_Implications_of_COMPAS_Reentry_Scales_297503_7.pdf) 14 Maria Sapouna, What Works to Reduce Reoffending: A Summary of the Evidence, Justice Analytical Services: Scottish Government 5 (2011) (noting that many female offenders were motivated to stop criminal acts because of the “support of friend, family, [and] children”) 9 Exacerbating the problems posed by parental incarceration is the fact that children find it more difficult to cope in situations characterized by uncertainty.15 The problems of disruption, lack of stability, and uncertainty are at the heart of analyzing the impact of parole determinations. In terms of policymaking, changes that help to reduce disruptions and increase stability are to be encouraged.16 Communication is also key, as giving children opportunities to express their emotions about the situation helps to relieve the trauma they face.17 The inability of an incarcerated person to know exactly how his or her parole will be determined and how long he or she will continue to be incarcerated creates more uncertainty for the individual, and that uncertainty can extend to interactions with his or her children. The ability of a risk and needs assessment device to predict recidivism is a societal benefit, but that same risk and needs assessment device confers a benefit to incarcerated individuals and their families, as the individuals are better able to know their likelihood of success and to communicate their understanding to their family. But this benefit is only gained if the risk and needs assessment 15 PRISONERS ONCE REMOVED, supra note 9 at 16 16 Id. at 16, 221-22 17 Id. at 216-17 10 device is applied with consistency and if explanations can be given for deviation from the recommendation it produces. By allowing incarcerated individuals and their families to plan together, parole decisions that are driven by risk and needs assessments can lessen the feelings of uncertainty that surround parole decisions. In fact, “[u]ncertainty about a particular prisoner’s situation and questions about the corrections department’s rules and policies that coincide with that uncertainty are among the greatest concerns of prisoners’ families.”18 Another benefit from planning is that children are less likely to experience feelings of abandonment and developmental issues where prison programming encourages and strengthens the family relationship.19 Thus, clearer parole policies, including consistent application of, and reliance upon, risk and needs assessment devices such as COMPAS, help facilitate communication between incarcerated persons and their families. By dispelling the uncertainty that surrounds the rules and policies controlling parole determinations – and by making those determinations transparent and rational – families are better equipped to cope with the decisions that are rendered. Moreover, even if the decisions deviate from 18 Id. at 272 (citations omitted) 19 See generally Families Left Behind, supra, note 9. See also Women’s Prison Association, When a Mother Is Arrested: How the Criminal Justice and Child Welfare Systems Can Work Together More Effectively: A Needs Assessment Initiated by the Maryland Department of Human Resources (1996). 11 the COMPAS-based recommendation, providing clear explanations will help to dispel the mystery surrounding parole determinations, alleviating one of the many stressors families face while a loved one is imprisoned. The increased planning COMPAS makes possible can also help ease the transition back into family life and aid in successful reintegration with the family. Transitioning from imprisonment to family life presents psychological challenges for those who are released on parole. Parents who are facing release may still be “dependent on institutional structures and routines” and thus may not be ready for the spontaneous, “autonomous decision-making that parenting requires.”20 Thus, an effective reentry process begins well in advance of an individual’s release, allowing those who will be paroled to reduce their dependence on institutional structures and to achieve greater autonomy. This in turn will help them find gainful employment, resume their roles as parents, and return to their greater community.21 This sort of planning is not limited to those who are incarcerated and are participating in programming with an eye toward release; rather, “corrections officials and community service providers must be looking backward from the community context into the institution in an effort to 20 PRISONERS ONCE REMOVED, supra note 9, at 55 21 Id. at 58 12 establish connections between the inmate and his family, his work environment, and his civic responsibilities.”22 In order to promote successful family reunification, all parties – those to be paroled, corrections officials, family members, and service providers in the community – must work together to form meaningful connections that are in place at the time of release. Clear application of COMPAS helps to ease this transition in two important ways. First, by taking into account family ties, the application of a neutral risk and needs assessment device helps reduce recidivism. Studies comparing the outcomes of individuals who maintained family connection during prison with those who did not suggest this correlation.23 Second, as explained above, there are psychological benefits to the increased communication that a clear and consistent policy provides. This, in turn, results in lower rates of physical, mental, and emotional problems for the individual and family members upon the individual’s release.24 Complicating this picture, formerly incarcerated individuals may face dramatically changed situations upon return to the family and community. An individual may return to find that his previous girlfriend is with a new 22 Id. at 144 23 Families Left Behind, supra note 9, at 6 24 Id. 13 partner. Relationships between family members may have soured. A child may have been placed in foster care and parental rights may have been terminated because of the strict timelines mandated by the Adoption and Safe Families Act.25 There is no magic solution for these problems. But application of COMPAS, coupled with an increase in prison programming, can help to equip individuals to confront the problems they will face once paroled. Thus, consistent application of COMPAS provides benefits for those to be paroled and their families, and also facilitates the successful functioning of the parole process. 25 N.Y. Soc. Serv. Law §384-b(3)(l) (2015) (requiring, with limited exceptions, that a termination of parental rights proceeding must be commenced when a child has been in foster care for 15 out of the past 22 months) 14 II. CONSISTENT USE OF AND RELIANCE UPON RISK AND NEEDS ASSESSMENTS IN PAROLE DECISION-MAKING ALSO FACILITATES SUCCESSFUL POST-RELEASE COMMUNITY REINTEGRATION In addition to benefiting the family, the consistent use of and reliance upon risk and needs assessments contributes to the well-being of the community into which the individual will be released. Successful parole can and should mean more than just lowering recidivism rates; formerly incarcerated individuals face a variety of challenges in finding housing, maintaining employment, providing financial support, and more.26 Thus, successful pre-release preparation has a positive impact not only on the individual but also on his or her interactions with members of the community. Effective planning can also help parolees avoid re-offense, which strengthens communities. Upon release, parolees will confront societal pressures that could lead to re-offense.27 They will “face considerable labor market barriers, including lack of human capital, stigma from employers, and legal exclusion from some occupations and public benefits.28 26 Christy A. Visher and Jeremy Travis, Transitions from Prison to Community: Understanding Individual Pathways, 29 ANNUAL REV. OF SOC. 89, 105 (2003) (comparing a longitudinal framework as opposed to simple outcome based analysis) 27 Jeffery Morenoff & David Harding Incarceration, Prisoner Reentry, and Communities, 40 ANNUAL REV. SOC. 411, 420 (2014) 28 Id. at 419 (reviewing various sources) 15 Incarceration can disrupt valuable social networks in many ways. It can remove people from their familial and friendship relations, and reentry can exacerbate these problems.29 Formerly incarcerated individuals return to communities with “limited financial resources but many financial needs.”30 Moreover, this financial hardship suffered by individuals returning from prison and their families “reduces their level of civic participation and also may undermine their ability for successful association activity and common purpose.”31 Thus, incarceration “weakens the family’s role as a mechanism of social control.”32 Parenting, literacy, drug treatment, educational, and other programs can therefore directly benefit the incarcerated individual’s community33 because these programs allow the individual to transition more smoothly from prison.34 This can also inculcate a desire to contribute to the community.35 29 PRISONERS ONCE REMOVED, supra note 9, at 316-17 30 Id. at 324 31 Id. 32 Jeremy Travis, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY 298 (2005) 33 Families Left Behind, supra note 9, at 2 34 Id. at 1, 6; see also Eileen Sullivan. Milton Mino, Katherine Nelson, FAMILIES AS A RESOURCE IN RECOVERY FROM DRUG ABUSE: AN EVALUATION OF LA BODEGA DE LA FAMILIA, Vera Institute of Justice (2002), available at www.ncjrs.gov/pdffiles1/nij/grants/195087.pdf. 35 See Transitions from Prison to Community: Understanding Individual Pathways, supra note 26, at 97. 16 Thus, in order to take seriously the community impact of release and reintegration into the community, “[r]eentry planning should discern the risks and assets in the returning individual’s peer groups.”36 “Successful prisoner reentry demands that all stakeholders in the process – individual prisoners, their families, criminal justice agencies, and ultimately all members of society – actively participate in the process.”37 Focusing on forward-looking factors such as program participation strengthens ties to the community, which, in turn, can help to promote successful reintegration. Therefore, as the community is directly affected by the removal and return of those who were imprisoned, the benefits to the community of increased planning and strengthening of support networks are crucially important. All of these considerations militate in favor of consistent application of COMPAS to parole determinations. 36 BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY, supra note 32, at 336 37 Id. at 324–5 17 CONCLUSION For the reasons set forth above, risk and needs assessments such as COMPAS should be used and relied upon consistently to guide parole decisions. Any determination that deviates from the outcome recommended by the individual’s risk and needs assessment should be explained in detail. This will ensure much needed transparency and rationality in the parole process. Family support, family reunification, and reintegration into the community are important factors in successful reentry. Consistency in the application of and reliance upon risk and needs assessments in parole decisionmaking, as contemplated by the 2011 amendments to the Executive Law, provides concrete benefits by easing the individual’s reunion with family members and aiding in the transition back into the community. Families can engage with their loved ones in providing support as they address identified needs factors. The use of objective factors in risk and needs assessments can help encourage that engagement. The assessments can ease communication with families and others in the outside world by replacing opaque, subjective reasoning and uncertainty with a predictable, objective standard for release. This, in turn, can help those facing release and their families develop a 18 strategy for dealing with the economic, emotional, and social pressures they will encounter as parolees reintegrate into their communities. However, all of the potential benefits derived from the use of risk and needs assessments can be easily lost if the assessments are not properly applied. To be effective and to achieve the goals of the 2011 legislation, risk and needs assessments must be used consistently and generally as a method for parole release decision-making. DATED: NEW YORK, NEW YORK July 1, 2015 Respectfully submitted, Philip M. Genty, Esq. MORNINGSIDE HEIGHTS LEGAL SERVICES, INC. Columbia Law School, Prisoners and Families Clinic 435 West 116th Street New York, NY 10027 Tel: (212) 854-3123 Facsimile: (212) 854-3699 pgenty@law.columbia.edu On the Brief: Meredith Manning, Law Graduate Daniel Pohlman, Law Graduate