In the Matter of Pablo Costello, Appellant,v.New York State Board of Parole et al., Respondents.BriefN.Y.June 5, 2014 Albany County Clerk’s Index No. 6880/11 IN THE New York Court of Appeals In the Matter of PABLO COSTELLO, Petitioner, For a Judgment Pursuant to CPLR Article 78 against NEW YORK STATE BOARD OF PAROLE, Andrea Evans, Chairwoman, Respondents. BRIEF OF SEVEN FORMER MEMBERS OF THE NEW YORK STATE BOARD OF PAROLE AS AMICUS CURIAE IN SUPPORT OF PETITIONER Scott A. Chesin Michael Rayfield Jed Glickstein (law intern) Attorneys for Amici Curiae 1675 Broadway New York, N.Y. 10019 (212) 506-2500 TABLE OF CONTENTS Page PRELIMINARY STATEMENT .............................................................................. 1 ARGUMENT ............................................................................................................ 3 I. THE BOARD IS AWARE OF HOW CRIME AFFECTS VICTIMS, AND IT ASSUMES THAT VICTIMS CONTINUE TO GRIEVE. ............. 3 II. THE THIRD DEPARTMENT’S RULE WOULD REQUIRE THE BOARD TO SIT IN JUDGMENT OF VICTIMS’ GRIEF. .......................... 6 III. THE PAROLE BOARD CANNOT TREAT VICTIMS OR PRISONERS FAIRLY IN AN ATMOSPHERE THAT IS EASILY SENSATIONALIZED AND CONDUCIVE TO IMPROPER INFLUENCE. ................................................................................................. 8 CONCLUSION ....................................................................................................... 10 BIOGRAPHIES OF AMICI CURIAE .......................................................... App’x A TABLE OF AUTHORITIES Page(s) -ii- CASES Brooks v. Travis, 19 A.D.3d 901 (3d Dept. 2005) ............................................................................ 7 Matter of Costello v N.Y. State Bd. of Parole, 101 A.D.3d 1512 (3d Dep’t 2012) ...............................................................passim Rizo v. N.Y. State Bd. of Parole, 251 A.D.2d 997 (4th Dep’t 1998) ......................................................................... 7 STATUTES 9 NYCRR § 8002.1 .................................................................................................... 4 9 NYCRR § 8002.4 .................................................................................................... 4 9 NYCRR §§ 8002.5 .................................................................................................. 1 CPLR 2221(d)(2) ....................................................................................................... 8 OTHER AUTHORITIES Glenn Blain, Golden Says Paterson Admin Has Blood On Its Hands Over Parolee, N.Y. Daily News (June 8, 2010) ........................................................................... 9 James C. McKinley, Parole Officials Won’t Appeal Decision to Free Kathy Boudin, N.Y. Times (Aug. 23, 2003) ................................................................................. 9 New York Division of Parole—Victim Impact Unit, https://www.parole.ny.gov/victimimpact.html ..................................................... 4 Opinion, Cop Killers’ Pal: Parole Board’s Thomas Grant Keeps Voting to Turn ‘Em Loose, N.Y. Daily News (Oct. 18, 2009) ......................................................................... 9 TABLE OF AUTHORITIES (continued) Page -iii- Opinion, Menaces to Society: Parole Board Pair Rightly Overruled on Freeing Murderous Drug Dealer, N.Y. Daily News (Sept. 24, 2009) ........................................................................ 9 Opinion, Set Free to Live, N.Y. Daily News (Aug. 11, 2012) ........................................................................ 9 Russ Buettner, Brooke Astor’s Son is Paroled, N.Y. Times (Aug. 22, 2013) ................................................................................. 9 Suzanne Moore, Michael Murphy Granted Parole, Press Republican (Apr. 20, 2012) ......................................................................... 9 PRELIMINARY STATEMENT This is a case about what legal standard the Board of Parole must satisfy in order to rescind a parole release date it has already granted. The Board’s regulations permit it to rescind a grant of parole if it learns of “significant information which existed . . . prior to the rendition of the parole release decision, where such information was not known by the board,” and then subsequently determines that this information constitutes “substantial evidence . . . to form a basis for rescinding the grant of release.” 9 NYCRR §§ 8002.5(b)(2), (d)(1). The question presented by this case is one that the Court has never previously addressed: whether victim impact statements submitted to the Board after it has already determined that parole is warranted constitute “significant new information” if those statements describe grief or suffering that is a foreseeable result of the underlying crime. The Third Department split on this important question. The majority held that “victim impact statements can constitute significant information which, when submitted to the Board even after its determination, may justify the temporary suspension or rescission of parole.” Matter of Costello v. N.Y. State Bd. of Parole, 101 A.D.3d 1512, 1513 (3d Dep’t 2012) (alteration omitted). But as Justice Spain recognized in his dissent, this ruling “condone[s]” a “troubling practice” whereby “certain victim statements are held back until after a decision to grant parole is -2- made, forcing the Board to confront unabashed media frenzy, public pressure, and family outrage, and to then entertain newly drafted but belated impact statements aimed at undoing considered Board decisions awarding parole.” Id. at 1516-17 (Spain, J., dissenting). The Third Department dissenter would have adopted the rule advocated by the Petitioner, who has argued that “‘significant new information’ in this context should be defined as information of a kind or degree that could not reasonably have been anticipated or foreseen by the parole-granting panel.” Pet’r Br. at 24. Amici are seven former members of the New York State Board of Parole.1 Drawing on a combined 57 years of experience in the parole process, we believe that inmates, victims, and the Board itself are best served by a clear rule that information that the original panel could have reasonably foreseen, including statements from family members of crime victims expressing genuine, normal continuing grief about the loss of a loved one, is not “significant new information.” We are deeply concerned that the Third Department’s rule in this case will undermine the integrity of the parole-granting process by subjecting Board members to inappropriate media and political pressure that will damage their ability to make just and reasoned decisions. We respectfully submit that the rule 1 The names and short biographies of each amicus are attached to this brief as Appendix A. -3- advanced by the Petitioner is the only fair and meaningful definition of “significant new information” in the context of parole rescission. We therefore urge the Court to annul the rescission of Petitioner’s parole release. ARGUMENT Because parole decisions are controversial by their nature, it is imperative that the Board have clear legal standards to give its decisions finality. In particular, it is important that “significant new information” actually be new. Otherwise, the Board is too easily pressured into revisiting decisions simply because some party objects to the initial decision to grant parole. In our judgment, the standard set by the Third Department in this case would afford the Board of Parole virtually unlimited discretion to rescind, even on the basis of information that is not meaningfully different from what the Board knew when it made its original decision. This would create an unacceptable risk of improper influence and unfairness, both real and perceived. A “foreseeability” standard, by contrast, would permit the Board to rescind based on truly unexpected information but would not undermine the integrity of its decision-making process. I. The Board Is Aware Of How Crime Affects Victims, And It Assumes That Victims Continue To Grieve. The Division of Parole takes its obligation to crime victims extremely seriously. It is expressly the policy of the Division “to create meaningful opportunity for individuals whose lives have been severely affected by serious -4- crimes to explain the impact of the crime in a face-to-face setting.” 9 NYCRR § 8002.4(a). To that end, the Division has enacted a variety of measures “to ensure that victims of crimes do not become forgotten parties in the criminal justice process.” New York Division of Parole—Victim Impact Unit, available at https:// www.parole.ny.gov/victimimpact.html (last visited Jan 6, 2014). For example, it has taken steps to allow victims to submit face-to-face, written, or recorded impact statements; it offers pre-paid victim notification mailers; and it provides toll-free numbers that victims can call to receive information about inmates who have been released on parole supervision. Id. In our experience, members of the Board of Parole take these policies and practices to heart. Although formal impact statements are relatively rare at the parole hearing stage—we estimate that the Board receives them in only 10 to 20 percent of cases—every member recognizes that victims continue to deal with the aftermath of a crime. Indeed, the Board is not permitted to order parole without considering whether doing so will “deprecate the seriousness of [an inmate’s] crime.” 9 NYCRR § 8002.1(a). This inevitably requires the panel to reflect on the crime and the suffering it must have caused to victims. In other words, it requires the Board to infer “the impact of the crime on the victim or the survivor” if such information has not already been provided directly. Id. § 8002.4(d)(6) (explaining what content a victim impact statement should convey). -5- As Board members, we valued impact statements because they bring particularity to a universal experience, and because they reflect the respect and dignity owed to victims. Yet such evidence very rarely caused us to approach a parole request differently. Put another way, direct input from victims generally had a significant effect in only those extremely rare cases where the Board received submissions supporting parole. Those submissions carried such weight precisely because they ran contrary to Board members’ expectations. One simply cannot conduct parole hearings for any length of time without realizing that victims often suffer long after the crime’s tangible effects have faded. Victims should never be denied the opportunity to share their story, of course. But Board members understand that convicted inmates have caused indelible harm whether or not a victim decides to submit a statement. For a serious offense like felony murder, that harm necessarily includes the heartache that all survivors must feel every time a loved one is not present for births, marriages, and other milestones. If the Board grants parole in a case involving a serious crime— as it did with Pablo Costello—it is because it has determined that despite the victims’ natural and continuing grief, the inmate’s release still complies with the Board’s statutory mandate. -6- II. The Third Department’s Rule Would Require The Board To Sit In Judgment Of Victims’ Grief. According to the Third Department, virtually every subjective experience in a victim impact statement is “new” so long as the Board has not yet seen it. See Costello, 101 A.D.3d at 1513-14 (“Where victims have not previously submitted statements, the argument that these statements are not new information . . . is without merit, as their actual subjective experience is clearly significant information previously unknown to the Board.” (internal quotation marks and alteration omitted)). But as Justice Spain explained, a family’s “actual subjective experience,” while “certainly an appropriate factor for the Board to consider,” “cannot be said to have been unknown, unanticipated, or, unfortunately, unusual for a surviving family.” Id. at 1516 (Spain, J., dissenting). This is because the Board makes its decisions with victims’ grief in mind. Thus, victim impact statements submitted after a grant of parole will rarely give the panel “new” information because the Board will have already assumed that victims felt the way they in fact did. The Third Department’s standard therefore puts the Board in an impossible predicament: either rescind parole based on information that it already understood when it made its decision, or re-confirm the grant of parole and signal to the victims that their heartfelt sorrow was not “significant” after all. The problem is exacerbated because “subjective experiences” cannot be tested, cross-examined, or verified, like other types of evidence in rescission -7- hearings can be. During a rescission, the inmate has various procedural rights to introduce evidence and to confront or cross-examine witnesses. These work well for the majority of rescissions. For instance, during the period between the parole hearing and the release date, an inmate might be accused of violating a significant facility rule. See, e.g., Brooks v. Travis, 19 A.D.3d 901, 901 (3d Dept. 2005) (parolee admitted illegal drug use after test showed traces of marijuana in his urine). Or the Board may learn that the inmate’s involvement in a crime was more serious than it thought when it granted release. See, e.g., Rizo v. N.Y. State Bd. of Parole, 251 A.D.2d 997, 997 (4th Dep’t 1998) (Parole Board did not know that inmate was connected to violent drug cartel when it granted parole). In such cases, rescission hearings tend to be relatively straightforward administrative affairs focused on a few discrete factual questions, which rescission procedures are well tailored to resolving. This procedural framework is much less useful—and much less straightforward—when the Board evaluates victim impact statements. Because members are already aware of victims’ suffering, it is not clear on what basis they should revisit their decision. And if foreseeability is not the rule for what constitutes “significant new information,” the Board has no way to treat different sets of victims fairly. It helps nobody—not the Board and certainly not victims— -8- to transform rescission hearings into judgment calls on the nature and sincerity of victims’ grief. III. The Parole Board Cannot Treat Victims Or Prisoners Fairly In An Atmosphere That Is Easily Sensationalized And Conducive To Improper Influence. Petitioner’s objective standard also safeguards the Board’s decisions from improper influence. The parole process is inherently controversial, and in almost every case there will be arguments and strong feelings on both sides. It is almost inevitable that some party will oppose a grant of parole. But mere disagreement with a result should not be grounds to reexamine a decision.2 If the Board had to revisit a grant of parole every time it received belated, subjective evidence that merely confirmed what it already believed to be the case, virtually every order would be subject to reexamination. The Third Department’s standard would do more than undermine the finality of Board decisions, however. It would also risk undermining the Board’s independence, potentially affecting public confidence in its broader decisionmaking. The names of the Board members on a particular panel are not released to the public ahead of time. At the rescission stage, however, the names 2 That is the longstanding rule in New York courts, for good reason. See CPLR 2221(d)(2) (motion for leave to reargue must be “based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.” (emphasis added)). -9- of the members who voted for release are frequently reported in the media. See, e.g., Russ Buettner, Brooke Astor’s Son is Paroled, N.Y. Times (Aug. 22, 2013) (naming and criticizing Board members Christina Hernandez, Joseph Crangle, and Gail Hallerdin for voting to release Anthony D. Marshall); Opinion, Set Free to Live, N.Y. Daily News (Aug. 11, 2012) (naming and criticizing Board members Michael Hagler and Sally Thompson for voting to release Harold Konigsberg); Suzanne Moore, Michael Murphy Granted Parole, Press Republican (Apr. 20, 2012) (naming Board members Henry Lemons and Mary Ross for voting to release Michael Murphy); Glenn Blain, Golden Says Paterson Admin Has Blood on its Hands Over Parolee, N.Y. Daily News (June 8, 2010) (naming Thomas Grant and Deborah Loomis as the members voting to release Shu’aib Raheem); Opinion, Cop Killers’ Pal: Parole Board’s Thomas Grant Keeps Voting to Turn ‘Em Loose, N.Y. Daily News (Oct. 18, 2009) (naming Thomas Grant and Christina Hernandez as the members voting to release Pablo Costello); Opinion, Menaces to Society: Parole Board Pair Rightly Overruled on Freeing Murderous Drug Dealer, N.Y. Daily News (Sept. 24, 2009) (naming and criticizing Mary Ross and Thomas Grant for voting to release Jose Diaz); James C. McKinley, Parole Officials Won’t Appeal Decision to Free Kathy Boudin, N.Y. Times (Aug. 23, 2003) (reporting criticism of release decision and naming Board members Daizee D. Bouey and Vernon Manley). Members who are publicly named—or who know they may be -10- publicly named in the future—face enormous pressure to reverse their decision. Without clear legal standards to cabin the Board’s discretion, and facing an incendiary media environment, Board members may very well be induced to reverse a parole determination even though no significant new information has been provided. See Costello, 101 A.D.3d at 1517 (Spain, J., dissenting) (Board was “forc[ed] . . . to confront unabashed media frenzy, public pressure and familial outrage”). Groups like the Patrolmen’s Benevolent Association firmly believe that any criminal who is convicted of a crime that involved the death of a police officer should be categorically ineligible for parole. They are well within their rights to advocate for that position, including during the parole process itself. But as Justice Spain noted in his dissent, “[i]t bears emphasis that [their position] was not and is not the law.” Id. Unless and until the legislature acts to bar inmates like Pablo Costello from even the possibility of parole, the Board must faithfully carry out its mandate in compliance with current law. That mission is made far more difficult by practically unfettered discretion to rescind on the basis of foreseeable victim impact statements. CONCLUSION For all the reasons expressed above, we respectfully urge this Court to annul the rescission of Petitioner’s parole release. -11- Dated: January 7, 2014 New York, N.Y. MAYER BROWN LLP ______________________ Scott A. Chesin Michael Rayfield Jed Glickstein (law intern)* 1675 Broadway New York, N.Y. 10019 (212) 506-2274 schesin@mayerbrown.com * Jed Glickstein, who participated substantially in the drafting of this brief, is a 2013 graduate of Yale Law School. He was employed as a summer associate at this Firm from May through August of 2012 and May through June of 2013, and he has received an offer to join the Firm as an associate following the completion of a judicial clerkship. Appendix A, page 1 of 2 APPENDIX A Biographies of Amici Curiae Robert Dennison was appointed to the New York State Board of Parole by Governor George E. Pataki and served from 2000 to 2007. Mr. Dennison was appointed Chairman of the Board of Parole in 2004 and served in that capacity for three years. Prior to his service on the Board, Mr. Dennison had a long career in parole, probation and corrections, having worked as a parole and probation officer in New York City, as a senior corrections counselor and regional program coordinator for the Department of Correctional Services, and as a parole revocation specialist and deputy regional director for the Division of Parole. Vernon Manley was appointed to the New York State Board of Parole by Governor George E. Pataki in 1999 and served until 2006. He formerly served as an assistant commissioner of the New York City Probation Department, as director of the New York City Commission on Human Rights Bias Response Team, and as deputy director of the Commission’s Neighborhood Rehabilitation Program. Mr. Manley also worked in the deputy mayor’s office under the administration of former New York City mayor Ed Koch. Thomas Grant was appointed to the New York State Board of Parole by Governor George E. Pataki and served for six years, from June 2004 until July 2010. Prior to his appointment, Mr. Grant was the Executive Assistant to the Chairman of the Board of Parole from 1996 to 2004. Mr. Grant also served for nearly twenty years in the New York State Senate, where he was the director of the Codes and Judiciary committees. George King was appointed to the New York State Board of Parole by Governor Mario M. Cuomo and served two terms, from 1989 to 1999. A 1973 graduate of Albany Law School, Mr. King formerly served as counsel to the New York State Commission of Correction, and as executive assistant to the director, and director of quality assurance in the former Division for Youth (now the Office of Children and Family Services). After his service on the Board, Mr. King served as counsel to the New York State and Local Retirement System within the Office of the State Comptroller. Appendix A, page 2 of 2 Barbara Treen was appointed to the New York State Board of Parole by Governor Mario M. Cuomo and served for twelve years, from 1984 to 1996. Prior to her Board appointment, Ms. Treen worked for the Stuyvesant Treatment Center developing drug treatment alternatives for formerly incarcerated women and as a program specialist for the New York City Board of Corrections. After leaving the Board, Ms. Treen served as the executive director of WomenCare, a mentoring program for recently released inmates. She also founded and directed The Justice Project, a restorative justice program that supports the families of inmates and engages in community education. Theodore Kirkland was appointed to the Board of Parole by Governor Hugh L. Carey and served from 1978 to 1985. Prior to his appointment, Mr. Kirkland was an officer in the Buffalo Police Department for fifteen years. Mr. Kirkland taught as an adjunct faculty member at Hunter College and the State University of New York at Buffalo. He also hosted a Buffalo public affairs television show, Kirkland and Company, and was the long-time host of the radio program, Kirkland’s Corner. Edward Hammock was appointed as Chairman of the New York State Board of Parole by Governor Hugh L. Carey and served in that capacity for eight years, from 1976 to 1984. Prior to his service on the Board, Mr. Hammock was an assistant district attorney in the office of former New York County District Attorney Frank Hogan, the executive director of Daytop Village, a senior assistant attorney general, and deputy commissioner of the New York City Department of Investigations.